Road to Nowhere: Hong Kong's Democratization and China's

Brooklyn Journal of International Law

Volume 40 | Issue 2 Article 3

2015

Road to Nowhere: Hong Kong's Democratizationand China's Obligations Under Public InternationalLawAlvin Y.H. Cheung

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Recommended CitationAlvin Y. Cheung, Road to Nowhere: Hong Kong's Democratization and China's Obligations Under Public International Law, 40 Brook. J.Int'l L. (2015).Available at: https://brooklynworks.brooklaw.edu/bjil/vol40/iss2/3

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ROAD TO NOWHERE: HONG KONG’SDEMOCRATIZATION AND CHINA’S

OBLIGATIONS UNDER PUBLICINTERNATIONAL LAW

Alvin Y.H. Cheung*

INTRODUCTION: WE’RE NOT LITTLE CHILDREN ................467I. BACKGROUND AND HISTORY ..........................................475

A. The United Kingdom’s Acquisition of Hong Kong ..475B. Background to the Joint Declaration ......................476C. The Drafting of the Basic Law ................................478D. 1990-1997: A Day Late and a Dollar Short ............479E. 2003-2004: Beijing Usurps Initiative ......................481F. 2007: Jam Tomorrow...............................................484G. 2009-2010: Divide and Conquer .............................485H. 2012: Playing Charades ..........................................487I. The Current Debate...................................................488

1. 2013: The Moderates Lose Patience.....................4892. 2014: Beijing’s Gloves Come Off; Hong Kong’sUmbrellas Come Out ................................................4943. Who Gets to Nominate? ........................................498

II. APPLICABLE LAW..........................................................504

* Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law; of theHong Kong Bar, barrister (non-practicing). I am grateful to Professors JeromeA. Cohen, Ira Belkin, and Margaret Satterthwaite, and to Alyssa S. King (J.D.,Yale 2012) for their comments on earlier versions of this article. I am also in-debted to Gloria Chan (LL.B., HKU 2016) for her assistance with preliminaryfactual research. All errors remain my own.

466 BROOK. J. INT’L L. [Vol. 40:2

A. The Contested Basis of Hong Kong’s New Legal Order......................................................................................504B. The PRC’s Attitude Toward Treaties ......................506

1. The Vienna Convention on the Law of Treaties(“VCLT”) ....................................................................5062. Customary International Law..............................508

C. The Joint Declaration..............................................509D. The Basic Law .........................................................510E. The ICCPR ...............................................................513

1. Interpreting the ICCPR........................................5142. Status of the Reservation to Article 25(b)............5153. Universal Suffrage and the Right to Vote ...........5204. Equal Suffrage ......................................................5215. The Right to Be Elected........................................521

F. The Right to Self-Determination .............................523G. A Right to Democracy in Customary International Law?......................................................................................523H. Breaches of Public International Law ....................526

1. The Joint Declaration ...........................................5262. The ICCPR ............................................................5303. Customary International Law..............................531

III. REMEDIES ...................................................................531A. The Joint Declaration ..............................................532B. The ICCPR ...............................................................532C. Customary International Law: Obligations ErgaOmnes? .........................................................................533D. Means of Enforcement .............................................535

1. Absence of Individual Right of Petition ...............5352. The PRC’s Refusal to Accept ICJ Jurisdiction ....536

2015] HONG KONG AND DEMOCRACY 467

3. Difficulty in Enforcing Obligations Erga Omnes.5374. Potential Solutions................................................537

CONCLUSION: THEY’LL MAKE A FOOL OF YOU ..................542

“Today, we have entered the home stretch to universal suf-frage.”

– Carrie Lam Cheng Yuet-ngor, Hong Kong Chief Secretary,December 4, 2013

“[T]he principle that the Chief Executive has to be a personwho loves the country and loves Hong Kong must be upheld.”

– National People’s Congress Standing Committee, August 31,2014

“We do not consider that the terms of the 31 August . . . deci-sion offer ‘genuine choice’ in any meaningful sense of the phrase,nor do we consider the decision consistent with the principle thatHong Kong should enjoy a high degree of autonomy.”

– U.K. House of Commons Foreign Affairs Committee, March6, 2015

INTRODUCTION: WE’RE NOT LITTLE CHILDREN

n August 31, 2014, the National People’s Congress Stand-ing Committee (“NPCSC”) ruled out democratic elections

Carrie Lam Cheng Yuet-ngor, H.K. Chief Sec’y for Administration,Speech to Legislative Council (Dec. 4, 2013), http://www.news.gov.hk/tc/rec-ord/html/2013/12/20131204_141632.shtml, author’s translation.

Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiang-gang Tebie Xingzhengqu Xingzheng Zhangguan Puxuan Wenti He 2016 NianLifa Hui Chansheng Banfa De Jueding(全國人民代表大會常務委員會關於香港特別行政區行政長官普選問題和 2016年立法會產生辦法的決定) [Decision of the Standing Committee of the National Peo-ple’s Congress on Issues Relating to the Selection of Chief Executive of theHong Kong Special Administrative Region by Universal Suffrage and on theMethod for Forming the Legislative Council of the Hong Kong Special Admin-istrative Region In the Year 2016] (adopted by the Standing Comm. Nat’l Peo-ple’s Cong., Aug. 31, 2014).

Foreign Affairs Committee, The UK’s Relations With Hong Kong: 30Years After the Joint Declaration, 2014–15, H.C. 649 (U.K.).

O


for Hong Kong’s legislature in 2016 and for its Chief Executivein 2017.1 The NPCSC’s Decision (“the 2014 Decision”) declaredthat the implementation of universal suffrage in Hong Kong im-plicated China’s “sovereignty, security and development inter-ests.”2 It therefore imposed strict conditions on nomination andcandidacy to ensure that candidates were politically acceptableto Beijing.3 Meanwhile, Beijing inveighed against collusion withexternal forces by democratic activists in Hong Kong and soughtto block a British inquiry into developments in the former U.K.colony on the basis that it constituted “interference in China’sinternal affairs.”4

This was not the first time foreign concern over Hong Kong’sdemocratization had drawn a harsh Chinese response. In an op-ed published in Hong Kong’s Chinese- and English-language pa-pers of record on September 14, 2013,5 Hugo Swire, Minister of

1. See, e.g., Chris Buckley & Michael Forsythe, China Restricts Voting Re-forms for Hong Kong, N.Y. TIMES (Aug. 31, 2014), http://nyti.ms/1ndHqh9. Seealso Alex Lo, The Rotten Boroughs That Are the Main Stumbling Block to Re-form, S. CHINA MORNING POST (H.K.), Jan. 31, 2015, http://www.scmp.com/com-ment/insight-opinion/article/1696759/rotten-buroughs-are-main-stumbling-block-reform.

2. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiang-gang Tebie Xingzhengqu Xingzheng Zhangguan Puxuan Wenti He 2016 NianLifa Hui Chansheng Banfa De Jueding (全國人民代表大會常務委員會關於香港特別行政區行政長官普選問題和 2016 年立法會產生辦法的決定) [Decision of theStanding Committee of the National People’s Congress on Issues Relating tothe Selection of Chief Executive of the Hong Kong Special Administrative Re-gion by Universal Suffrage and on the Method for Forming the LegislativeCouncil of the Hong Kong Special Administrative Region In the Year 2016](adopted by the Standing Comm. Nat’l People’s Cong., Aug. 31, 2014) [herein-after 2014 Decision].

3. See Buckley & Forsythe, supra note 1.4. See 陳佐洱：不與「漢奸港獨」做朋友 [Chen Zuoer: Will Not Befriend

“Traitors, Separatists”], MINGPAO (H.K.), Aug. 30, 2014 and LauraKuenssberg, China Accuses MPs of Hong Kong ‘Interference’, BBC NEWS (Sept.1, 2014), http://www.bbc.com/news/uk-politics-29016776.

5. Hugo Swire, 選舉、民主和香港的未來 [Voting, Democracy and the Fu-ture of Hong Kong], MINGPAO (H.K.), Sept. 14, 2013; Hugo Swire, People MustHave a Genuine Choice in the 2017 Chief Executive Election, S. CHINA MORNINGPOST (H.K.), Sept. 14, 2013, http://www.scmp.com/comment/insight-opinion/ar-ticle/1309205/people-must-have-genuine-choice-2017-chief-executive. See alsoHugo Swire, Voting, Democracy and the Future of Hong Kong, GOV.UK (Sept.14, 2013), https://www.gov.uk/government/speeches/voting-democracy-and-the-future-of-hong-kong.


State for the Foreign and Commonwealth Office (“FCO”) of theUnited Kingdom, stated his support for the introduction of uni-versal suffrage in Hong Kong. Swire reiterated the United King-dom’s commitment to Hong Kong under the Sino-British JointDeclaration of 1984 (“Joint Declaration”), adding, “the U.K.stands ready to support [Hong Kong’s transition to universalsuffrage] in any way [it] can.”6 Official responses ranged fromthe unfriendly to the vitriolic. Leung Chun-ying (梁振英; com-monly known as “C.Y. Leung”), the city’s Chief Executive, as-serted that Hong Kong needed no foreign support to implementuniversal suffrage.7 The People’s Republic of China (“PRC”) For-eign Ministry denounced British intervention in Hong Kong’s in-ternal affairs. 8 Official media cited ominous warnings fromHong Kong-based pro-Beijing papers about the influence of Brit-ish spies “across the city’s government, judiciary, chambers ofcommerce and the media.”9 Pro-democracy remarks by CliffordHart, the American Consul-General, were met with a similarlyhostile response.10

6. Id.7. Tanna Chong & Stuart Lau, Beijing to Britain: Stop Interfering With

Hong Kong’s Internal Affairs, S. CHINA MORNING POST (H.K.), Sept. 17, 2013,http://www.scmp.com/news/hong-kong/article/1311049/beijing-britain-stop-in-terfering-hong-kongs-internal-affairs?page=all; 梁振英：政改毋須外國援助[C.Y. Leung: Political Reform Requires No Foreign Assistance], MINGPAOINSTANT NEWS (Sept. 27, 2013, 2:07 PM), http://inews.mingpao.com/htm/IN-ews/20130927/gb51407k.htm.

8. Chong & Lau, supra note 7.9. Te-Ping Chen, Hong Kong Riddled With British Spies, Reports Say,

CHINA REAL TIME (Sept. 18, 2013, 6:17 PM), http://blogs.wsj.com/china-realtime/2013/09/18/hong-kong-riddled-with-british-spies-reports-say/.

10. See, e.g.,京官轟夏千福沒資格談普選 [Beijing Officials Slam Clifford Hartas Unqualified to Discuss Universal Suffrage], APPLE DAILY (H.K.), Sept. 26,2013. In a speech on September 24, 2013, Hart said that the United States had“no prescription for Hong Kong’s electoral process,” but it would not be silencedby China in its support of democracy. Keith Bradsher, U.S. Envoy Affirms Sup-port for Universal Suffrage in Hong Kong, N.Y. TIMES, Sept. 24, 2013,http://www.nytimes.com/2013/09/25/world/asia/us-envoy-affirms-support-for-universal-suffrage-in-hong-kong.html; Greg Torode, New U.S. Envoy to HongKong Vows to Push For Democracy, REUTERS, Sept. 24, 2013, available athttp://www.reuters.com/article/2013/09/24/us-hongkong-usa-idUSBRE98N09820130924. Although German Consul-General Nikolaus vonder Wenge Graf Lambsdorff has also made remarks in support of universalsuffrage, the author is not currently aware of any official response by the Hong


Beijing’s shrill response to foreign comments on Hong Kongmay belie unease about its failure to meet its international legalcommitments. In the Joint Declaration, China promised HongKong a “high degree of autonomy” under the doctrine of “OneCountry, Two Systems” (一國兩制). Hong Kong would have anelected legislature after the resumption of Chinese sovereigntyin 1997. The city’s Chief Executive—its head of government—would be selected through elections or consultations.11 The pro-visions of the International Covenant on Civil and PoliticalRights (“ICCPR”) that the United Kingdom had acceded to onHong Kong’s behalf would continue to apply.12 China later en-shrined its commitments to Hong Kong’s democratization in theBasic Law, the constitutional instrument for the country’s firstSpecial Administrative Region (“SAR”).13 Articles 45 and 68 ofthe Basic Law proclaimed that the “ultimate aim” would be forHong Kong to choose its Chief Executive and its legislaturethrough universal suffrage.14

Yet, more than seventeen years after the transfer of sover-eignty, China’s promises of democratization in Hong Kong ringincreasingly hollow. China butted heads with the United King-dom over electoral arrangements for the city’s Legislative Coun-cil (“Legco”) throughout the 1990s; 15 it ultimately reversed Brit-ish reforms by setting up its own shadow legislature.16 After

Kong or Beijing Governments, See On Democracy, HARBOUR TIMES (H.K.), Jan.10, 2014, available at http://harbourtimes.com/openpublish/article/democracy.

11. See “B. Background to the Joint Declaration,” infra, at 14. See also “C.The Joint Declaration,” infra, at 46.

12. See “E. The ICCPR,” infra, at 50.13. Macau, previously a Portuguese colony, became the second SAR on De-

cember 20, 1999. See Joe Havely, What Now for Macau? BBC NEWS (Dec. 20,1999), http://news.bbc.co.uk/2/hi/asia-pacific/566074.stm.

14. See infra Part II.D.15. See Michael C. Davis, Constitutionalism in Hong Kong: Politics Versus

Economics, 18 U. PA. J. INT’L ECON. L. 157, 169–73 (1997). See also infra PartI.D.

16. See infra Part I.D.


1997, the NPCSC repeatedly pushed back the deadline for de-mocratization.17 In 2007, the NPCSC promised universal suf-frage in the 2017 Chief Executive elections.18 Yet the 2014 Deci-sion spells out—more clearly than any previous statement—thatChina’s “bottom line” is a power of veto over candidates with po-litical views it deems repugnant.19

Beijing’s repeated moving of the goalposts is significant be-cause it calls into question the PRC’s willingness to abide by itsobligations under international law. As a result, it has promptedgrowing international fears for the territory’s future. Despite thehostile Chinese reception to the statements by Swire and Hart,the German Consul-General added his voice to the chorus inearly 2014, stating, “[w]ith universal suffrage, our understand-ing is everybody has a vote and everybody can run.”20 Sir Rich-ard Ottaway, the Chair of the U.K. House of Commons ForeignAffairs Committee, declared on September 2, 2014, that therewas “a prima facie case” that the 2014 Decision violated theJoint Declaration.21

Beijing’s lengthy history of default has had two major conse-quences. First, the absence of electoral reform has created anongoing crisis of legitimacy. In 2012, C.Y. Leung was selected as

17. Lorenz Langer, Electoral Reform in Hong Kong: From Schedule to Sub-stance, 22 H.K. J. (2011).

18. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiang-gang Tebie Xingzhengqu 2012 Nian Xingzheng Zhangguan He Lifa Hui Chans-heng Banfa Ji Youguan Puxuan Wenti de Jueding (全國人民代表大會常務委員會關於香港特別行政區 2012年行政長官和立法會產生辦法及有關普選問題的決定)[Decision of the Standing Committee of the National People’s Congress on Is-sues Relating to the Methods for Selecting the Chief Executive of the HongKong Special Administrative Region and for Forming the Legislative Councilof the Hong Kong Special Administrative Region in the Year 2012 and on Is-sues Relating to Universal Suffrage] (adopted by the Standing Comm. Nat’lPeople’s Cong., Dec. 29, 2007), available at http://www.npc.gov.cn/npc/xin-wen/syxw/2007-12/29/content_1387576.htm [hereinafter 2007 Decision].

19. See 2014 Decision, supra note 2. See also Xiaoyang Qiao, 喬曉陽在香港立法會部分議員座談會上的講話[Qiao Xiaoyang’s Remarks at a Seminar WithSome Members of the H.K. Legislative Council] (Mar. 24, 2013),http://www.locpg.gov.cn/shouyexinwen/201303/t20130327_7135.asp.

20. On Democracy, supra note 10.21. Malcolm Moore, China “Has Breached Terms of Hong Kong Handover”,

TELEGRAPH, Sept. 2, 2014, http://www.telegraph.co.uk/news/world-news/asia/hongkong/11069949/China-has-breached-terms-of-Hong-Kong-handover.html.


Chief Executive by an Electoral Committee of 1,200 people in aprocess the Economist described as a “farce.”22 In the same year,half of the legislative seats were chosen through a “functionalconstituency” voting system previously condemned by the U.N.Human Rights Committee as a system of unequal suffrage.23

Second, public cynicism about “One Country, Two Systems” hastaken root. The Hong Kong Government’s consultation on ChiefExecutive electoral reform for 2017 was met with suspicion, evenbefore the consultation document’s release.24 In December 2013,a University of Hong Kong survey revealed that 42.3 percent ofrespondents had no confidence in “One Country, Two Sys-tems.”25 The perception of bad faith in the part of Beijing andHong Kong Governments even prompted calls for mass civil dis-obedience,26 culminating in the Umbrella Movement protests of2014.27

22. Hong Kong’s Chief-Executive “Election”: The Worst System, Including Allthe Others, ECONOMIST, Mar. 31, 2012, http://www.econo-mist.com/node/21551482. See also infra Part I.H.

23. See Human Rights Comm., Concluding Observations of the HumanRights Comm., ¶ 19, U.N. Doc. CCPR/C/79/Add.57 (1995) [hereinafter 1995Concluding Observations]; SARAH JOSEPH & MELISSA CASTAN, THEINTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS,AND COMMENTARY 742 (3d ed. 2013). For a detailed explanation of functionalconstituencies, see SIMON N.M. YOUNG & ANTHONY LAW, A CRITICALINTRODUCTION TO HONG KONG’S FUNCTIONAL CONSTITUENCIES (2004), availableat http://www.law.hku.hk/ccpl/Docs/FCsreport.pdf. See also infra Part II.D.

24. See Tanna Chong & Stuart Lau, Popular Nomination for Chief ExecutiveStill A Possibility, S. CHINA MORNING POST (H.K.), Nov. 24, 2013,http://www.scmp.com/news/hong-kong/article/1364804/popular-nomination-chief-executive-still-possibility; Tanna Chong & Tony Cheung, Li Fei OffersMore Questions Than Answers, S. CHINA MORNING POST (H.K.), Nov. 23, 2013,http://www.scmp.com/news/hong-kong/article/1363094/li-fei-offers-more-ques-tions-answers. For the consultation document, see H.K. GOV’T, LET’S TALK ANDACHIEVE UNIVERSAL SUFFRAGE (2013) [hereinafter 2013 CONSULTATIONDOCUMENT].

25. People’s Lack of Confidence in HK’s Future, People’s Lack of Confidencein China’s Future and People’s Lack of Confidence in “One Country, Two Sys-tems” (Monthly Average), HKU POP SITE, http://hkupop.hku.hk/english/popex-press/trust/conhkfuture/combine_no/datatables.html (last visited Jan. 10,2014).

26. See discussion of “Occupy Central with Love and Peace” infra Part I.I.1.27. See, e.g., Lauren Hilgers, Hong Kong’s Umbrella Revolution Isn’t Over

Yet, N.Y. TIMES MAG., Feb. 18, 2015, http://www.nytimes.com/2015/02/22/mag-azine/hong-kongs-umbrella-revolution-isnt-over-yet.html.


Although there has been extensive discussion since 1984 ofHong Kong’s post-1997 constitutional order,28 there has beenrelatively little discussion outside of Hong Kong legal academiaregarding the impact of events after 1997.29 Even within HongKong legal academia, discussion of recent milestones in electoralreform has been limited.30 This paper brings the academic dis-cussion of post-1997 Hong Kong up to date in light of develop-ments during 2013 and the first three quarters of 2014, with lim-ited consideration of the Umbrella Movement and its aftermath.It also examines the PRC’s public international law obligationswith respect to Hong Kong specifically.

Part I sets out the background to the resumption of Chinesesovereignty over Hong Kong in 1997. It posits that China laidthe foundations for its later defaults on democratization as earlyas 1972, when it requested Hong Kong’s removal from theUnited Nations’ list of Non-Self-Governing Territories. 31 TheBritish policy of acquiescence during the 1980s aided and abet-ted future Chinese backsliding.32 Newfound and belated Britishassertiveness in the 1990s was insufficient to undo the damagedone by years of British appeasement.33 Part I then provides anaccount of Beijing’s attempts to undermine democratic reform inHong Kong from 2003 to date, culminating in the current roundof debates regarding Chief Executive electoral reforms for 2017.After the NPCSC usurped the power to initiate electoral reformin Hong Kong in 2004,34 it pledged in 2007 that Hong Kong could

28. See, e.g., Thomas Boasberg, One Country, One-and-a-Half Systems: TheHong Kong Basic Law and Its Breaches of the Sino-British Joint Declaration,10 WIS. INT’L L.J. 282 (1991); Nancy C. Jackson, The Legal Regime of HongKong After 1997: An Examination of the Joint Declaration of the United King-dom and the People’s Republic of China, 5 BERKELEY J. INT’L L. 377 (1987).

29. See, e.g., BRUCE HERSCHENSOHN, HONG KONG AT THE HANDOVER (2000);RALF HORLEMANN, HONG KONG’S TRANSITION TO CHINESE RULE: THE LIMITS OFAUTONOMY (2002).

30. See, e.g., Albert H.Y. Chen, Hong Kong’s Constitutional Moment of 2014,43 H.K. L.J. 791 (2013).

31. YASH GHAI, HONG KONG’S NEW CONSTITUTIONAL ORDER: THERESUMPTION OF CHINESE SOVEREIGNTY AND THE BASIC LAW 11, 38 (2d ed. 1999);see also Boasberg, supra note 28, at 288–89.

32. See 英鴿派當道談判節節敗退 [British Doves Prevailed, Repeatedly Re-treated in Negotiations], MINGPAO (H.K.), Jan. 4, 2014.

33. See infra Part I.D.34. See infra Part I.E.


elect its own Chief Executive through universal suffrage in2017.35 Yet Beijing remains adamant on maintaining a power ofveto by controlling the nomination process.36

Part II considers the applicable international legal framework.It contends that any attempt by Beijing to impose political crite-ria on Chief Executive candidacy violates obligations imposed bythe Joint Declaration, the ICCPR, and customary internationallaw. First, the object and purpose of the Joint Declaration, thePRC’s subsequent practice in promulgating the Basic Law, andother rules of treaty interpretation suggest that Beijing may notrender the Joint Declaration’s references to “elections” nugatory.Second, the provisions of the ICCPR requiring universal suf-frage, equal suffrage, and the right to be elected regardless ofpolitical affiliation apply with full force to Hong Kong, despiteinsistence by pre-1997 and post-1997 Hong Kong Governmentsthat they do not. The latter position is inconsistent with the Hu-man Rights Committee’s conclusions, established rules of treatyinterpretation, and emergent rules of customary internationallaw. Third, although customary international law does not sup-port a right to democracy per se, it arguably supports a principleof “democratic teleology” or a right to democratization.

Part III considers possible remedies and means of enforce-ment. In the absence of compulsory jurisdiction by the Interna-tional Court of Justice (“ICJ”) or of individual communicationsunder the Optional Protocol to the ICCPR, the options for enforc-ing the PRC’s international law obligations are limited. Yet al-ternatives remain available. Unilateral monitoring by theUnited Kingdom, the prospect of a General Assembly request foran Advisory Opinion, or conduct by third States, provide possi-ble—if unlikely—means of enforcement. Ultimately, the most ef-fective means of exerting pressure on the PRC to abide by itsinternational law obligations may not involve State actors. Itmay not even involve public international law at all. However,China’s increasing hostility toward democracy and “universalvalues”37 warrants pessimism toward the prospects of democra-tization in Hong Kong.

35. See infra Part I.F.36. See infra Part I.I.37. Document No. 9, an internal memorandum issued by the Chinese Com-

munist Party in 2013, declared that “constitutional democracy,” “universal val-ues,” human rights, and other “Western” ideas were subversive and should be


I. BACKGROUND AND HISTORY

Beijing’s attempts to stymie Hong Kong’s democratization be-gan well before 1997. These efforts continued after the signingof the Joint Declaration and intensified after the transfer of sov-ereignty, especially after landmark protests in 2003 against na-tional security legislation. Between 2003 and 2010, Beijingseized the power to initiate democratic reform in Hong Kong, de-layed democratization until 2017 at the earliest, and createdschisms within the pro-democracy camp. Despite these efforts,demand for democratization continued to build. The debacle sur-rounding the Chief Executive selection process in 2012 providedfurther impetus for reform. Despite—or perhaps because of—thegrowing clamor for reforms, the 2014 Decision entrenched Bei-jing’s stranglehold over the nomination of candidates for ChiefExecutive.

A. The United Kingdom’s Acquisition of Hong KongThe United Kingdom acquired control over Hong Kong

through three treaties with China during the nineteenth cen-tury. As part of the settlement of the First Opium War, Chinaceded the island of Hong Kong to the United Kingdom in perpe-tuity in 1842, under the Treaty of Nanking.38 China ceded theKowloon Peninsula under the First Convention of Peking of 1860at the conclusion of the Second Opium War.39 Under the thirdtreaty, the Second Convention of Peking of 1898, China grantedthe United Kingdom a ninety-nine-year lease over the New Ter-ritories and Outlying Islands.40

eliminated. Document 9: A ChinaFile Translation: How Much is a HardlineParty Directive Shaping China’s Current Political Climate?, CHINAFILE (Nov.8, 2013), http://www.chinafile.com/document-9-chinafile-translation [hereinaf-ter Document 9]. For more recent developments, see generally Samuel Wade,Unraveling China’s Campaign Against Western Values, CHINA DIGITAL TIMES(Mar. 5, 2015, 11:42 PM), http://chinadigitaltimes.net/2015/03/unraveling-chi-nas-campaign-western-values/.

38. GHAI, supra note 31, at 4.39. Id. at 4–5.40. Id. at 5–6.


Successive Chinese governments harbored resentment overthe treaties on Hong Kong,41 but no Chinese government at-tempted to recover Hong Kong until 1982.42 Prior to 1982, thePRC maintained that the treaties imposed on China in the nine-teenth and early twentieth centuries were void as unequal trea-ties, but that it would recover Hong Kong at an appropriatetime.43 Pursuant to that stance, the PRC successfully sought theremoval of Hong Kong from the United Nations’ list of Non-Self-Governing Territories in 1972.44

B. Background to the Joint DeclarationBy the early 1980s, the looming end of the British lease over

the New Territories forced the British government to enter talkswith Beijing over the future of Hong Kong.45 China also found itexpedient to negotiate. In 1978, the PRC secretly established theHong Kong and Macau Affairs Office (“HKMAO”); 46 by 1979Deng Xiaoping had become General Secretary of the CommunistParty of China.47 The recovery of Hong Kong would not only pre-serve face for China; it would also aid China’s economic develop-ment and damage Deng’s hard-line rivals in Beijing.48

The Chinese were determined to regain sovereignty over HongKong at all costs.49 The British soon discovered the extent of thatdetermination; Deng reacted angrily to Thatcher’s claim that thetreaties regarding Hong Kong remained valid.50 The PRC fur-ther strengthened its bargaining position by threatening a uni-lateral declaration of its policies toward Hong Kong after 1997.51

Faced with an obdurate Chinese negotiating position, the Brit-

41. Id. at 9.42. Boasberg, supra note 28, at 287–89.43. Id. at 288–89.44. GHAI, supra note 31, at 11, 38; Boasberg, supra note 28, at 288–89.45. GHAI, supra note 31, at 36–38; Boasberg, supra note 28, at 289.46. GHAI, supra note 31, at 37.47. Boasberg, supra note 28, at 289.48. GHAI, supra note 31, at 37.49. Id. at 47; Boasberg, supra note 28, at 290–91.50. GHAI, supra note 31, at 47.51. Id. at 48–49; Boasberg, supra note 28, at 290.


ish abandoned their proposal to exchange sovereignty for admin-istrative rights in late 1983.52 Chinese proposals provided thebasis for further negotiations.53

China’s plan for Hong Kong rested on the concept of “OneCountry, Two Systems,” under which Hong Kong would be ruledby Beijing but allowed to retain its capitalist economy. Dengpromised that post-1997 Hong Kong would have a “high degreeof autonomy” (高度自治) and that “Hong Kong people will ruleHong Kong” (港人治港).54 Beijing encapsulated this policy intwelve points, which were presented to the United Kingdom onJune 27, 1984.55 These points included guarantees that:

(1) Hong Kong would not be run by Beijing’s plenipo-tentiaries;(2) Hong Kong would have a “mayor” elected by HongKong inhabitants, who should be a “patriot”;(3) Except in matters of foreign affairs and defense,Beijing would not interfere in Hong Kong’s governance;and(4) The PRC would tolerate political activities in HongKong, provided they did not constitute sabotage.56

Deng hoped that “One Country, Two Systems” held the key toresolving the questions of Hong Kong and Macau—and, ulti-mately, to reunification with Taiwan.57 To that end, the PRC’s1982 Constitution (promulgated as part of Deng’s comprehen-sive reforms) included a provision allowing the creation of SARs,with systems of government to be prescribed by the NationalPeople’s Congress (“NPC”) “in the light of the specific condi-tions.”58

52. Boasberg, supra note 28, at 294; GHAI, supra note 31, at 47–48. See also英鴿派當道談判節節敗退 [British Doves Prevailed, Repeatedly Retreated in Ne-gotiations], supra note 31 and accompanying text.

53. GHAI, supra note 31, at 46, 48–50.54. Boasberg, supra note 28, at 291.55. GHAI, supra note 31, at 49–50.56. Id. at 49–50.57. Boasberg, supra note 28, at 291; Jackson, supra note 28, at 422.58. XIANFA art. 31 (1982) (China).


China had initially been reluctant to enter into a bindingtreaty on the future of Hong Kong, although Deng ultimately re-lented.59 The Joint Declaration was initialed on September 24,1984 and came into force on May 27, 1985.60 It was registeredwith the United Nations on June 12, 1985.61

C. The Drafting of the Basic Law62

Following ratification of the Joint Declaration, the PRC set upthe Basic Law Drafting Committee (“Drafting Committee”). TheDrafting Committee consisted of fifty-nine members from HongKong and Mainland China, with Mainland members forming themajority.63 The Drafting Committee was aided by a Basic LawConsultative Committee (“Consultative Committee”), ostensiblyintended to introduce a degree of public participation. 64 TheUnited Kingdom played a minimal role in the drafting process;65

it had agreed not to engage in any constitutional reforms thatwould be inconsistent with the Basic Law, a policy referred to as“convergence.”66 The drafting process ultimately became an at-tempt by a minority of liberal-minded Drafting Committee mem-bers to prevent erosion of Chinese commitments in the JointDeclaration.67 With respect to democracy, they achieved only

59. GHAI, supra note 31, at 53.60. Id. at 55–56.61. Joint Declaration on the Question of Hong Kong, China-U.K., Dec. 19,

1984, 1399 U.N.T.S. 33 [hereinafter Joint Declaration].62. Zhonghua Renmin Gongheguo Xianggang Tebie Xingzhengqu Jibenfa

[Basic Law of the Hong Kong Special Administrative Region of the People’sRepublic of China] (promulgated by Order No.26, Pres. of China, Apr. 4, 1990,effective Jul. 1, 1997) [hereinafter Basic Law or BL].

63. GHAI, supra note 31, at 57.64. Id. at 58–59. The Consultative Committee’s Secretary-General was C.Y.

Leung, who would become Hong Kong’s third Chief Executive in 2012. ColleenLee, Ex-Communist Raps Comrade C.Y., S. CHINA MORNING POST (H.K.), Mar.19, 2012, http://www.scmp.com/article/995884/ex-communist-raps-comrade-cy.

65. See GHAI, supra note 31, at 59–60.66. Id. at 59–60; Davis, supra note 15, at 170. The practical consequence—

and, indeed, the intent—of “convergence” was to “contain the pace of politicalreform.” CHRISTOPHER PATTEN, EAST AND WEST: CHINA, POWER, AND THE FUTUREOF ASIA 25 (1998).

67. Davis, supra note 15, at 162.


limited success, especially after the Tiananmen Square Massa-cre of 1989.68

The provisions governing Hong Kong’s political system wereparticularly contentious.69 Pro-Beijing conservatives sought tolimit direct elections of the legislature and to have the Chief Ex-ecutive selected through an electoral college.70 Pro-democracyliberals sought the election of both the legislature and the ChiefExecutive through universal suffrage. 71 The conservatives—with Beijing’s blessing—ultimately won the argument.72

The process of negotiating the Joint Declaration—and, to alesser extent, the drafting process of the Basic Law—was re-markable for its lack of representation of the interests of theHong Kong public. When then-Governor Sir Edward Youde de-clared in 1982 that he represented the interests of Hong Kong,the PRC Foreign Ministry responded that Youde could only bepresent as a representative of the United Kingdom.73 During thedrafting of the Basic Law, attempts by the Hong Kong public tomake their views known had little impact on the Drafting Com-mittee.74 Chinese attitudes hardened further after the Tianan-men Square Massacre as hardliners consolidated their posi-tion;75 by the end of the drafting process, Beijing was “increas-ingly dictating the terms of the Basic Law.”76

D. 1990-1997: A Day Late and a Dollar ShortThe administration of Hong Kong between 1984 and 1997

raised thorny difficulties, even before 1989. The United King-dom purported to retain administrative authority over HongKong.77 Yet the PRC also claimed an interest in the prosperityand stability of the Crown Colony.78 A smooth transition wouldonly have been possible with the full cooperation of the United

68. Id. at 162–63.69. GHAI, supra note 31, at 63.70. Id.71. Id.72. Id.73. STEVE TSANG, A MODERN HISTORY OF HONG KONG 222 (2007).74. GHAI, supra note 31, at 60–61.75. Id. at 60.76. Id. at 61.77. Id. at 75.78. Id.


Kingdom and PRC and of Hong Kong’s domestic institutions.79

Instead, the two sovereigns began jockeying for power almostimmediately.80

The United Kingdom made an early push for Hong Kong’s de-mocratization in 1984 in a consultation document (a “Green Pa-per”) that contained detailed proposals for a Parliamentary de-mocracy;81 however, the Green Paper fell victim to the UnitedKingdom’s policy of “convergence.”82

The United Kingdom would come to regret its policy of ap-peasement. The bloody suppression of the 1989 democracy move-ment shattered the Hong Kong public’s confidence in Beijing,prompting mass emigration during the 1990s.83 London cameunder pressure—both from Hong Kong and internationally—tohasten democratization and protect rights and freedoms;84 for itspart, Beijing fought British attempts at political reform at everyturn. 85 The Memorandum of Understanding on Hong Kong’snew airport, signed in 1991, also prompted the United Kingdomto reconsider its concessions to China.86 The British negotiatingposition would harden after 1991, but this would have little ef-fect in securing greater Chinese commitment to Hong Kong’s de-mocratization.

79. Id. at 73.80. See id. at 75.81. See id. at 76.82. See supra note 64 and accompanying text. See also GHAI, supra note 31,

at 76.83. See Sebastian Veg, Hong Kong’s Enduring Identity Crisis, ATLANTIC

(Oct. 16, 2013, 3:26 PM), http://www.theatlantic.com/china/ar-chive/2013/10/hong-kongs-enduring-identity-crisis/280622/.

84. GHAI, supra note 31, at 76.85. Id.86. The Memorandum of Understanding imposed various substantive and

procedural requirements on the construction of the new Hong Kong Interna-tional Airport, the effect of which was to require consultation or consent of thePRC and to dictate the Hong Kong treasury’s fiscal reserves. The Memoran-dum also established an Airport Committee under the Joint Liaison Group (thelatter being a creation of the Joint Declaration); the Airport Committee oper-ated in secret, setting “a bad precedent for public participation, policy makingand accountability.” GHAI, supra note 31, at 77. See also Alvin Y. So, TheTiananmen Incident, Patten’s Electoral Reforms, and the Roots of ContestedDemocracy in Hong Kong, in THE CHALLENGE OF HONG KONG’S REINTEGRATIONWITH CHINA 49, 61–62 (Ming K. Chan ed., 1997).


The most prominent symbol of the United Kingdom’s new-found assertiveness was the appointment of Chris Patten, a sen-ior Conservative politician, as Hong Kong’s last governor in1992.87 In October 1992, without consulting Beijing, Patten an-nounced Legco electoral reforms for 1995, which, although con-forming to the letter of the Basic Law, hastened the pace of de-mocratization.88 Beijing’s reaction was vituperative.89 After sev-enteen rounds of talks, Sino-British negotiations failed;90 Legcopassed Patten’s reform package substantially unchanged.

Following the passage of the Patten reforms, Beijing went itsown way. It declared that the “through train” arrangement, un-der which legislators elected in 1995 could remain in office until1999, had been derailed.91 It also hastened arrangements for itsown shadow government, the Preliminary Working Committee(PWC),92 and created a “provisional legislature”—a creature for-eign to the Basic Law.93 The deterioration of Sino-British rela-tions after 1989 thus resulted in two tracks of government, witheach track intent on undoing the reforms instituted by the other.This pattern of Chinese recalcitrance was an ominous sign ofthings to come. It showed, to many, a “cavalier attitude towardsthe Basic Law.”94 Subsequent events would prove the skepticscorrect.

E. 2003-2004: Beijing Usurps InitiativeOn July 1, 2003, an estimated 500,000 people marched in pro-

test against proposed national security legislation.95 Demands

87. See GHAI, supra note 31, at 78.88. See So, supra note 86, at 63–64; see also GHAI, supra note 31, at 78.89. Then-HKMAO chief, Lu Ping (魯平), castigated Patten as a “sinner of

the ages.” See Tony Cheung, Last Governor Chris Patten Speaks of ‘Regrets’Over Hong Kong Democracy, S. CHINA MORNING POST (H.K.), Nov. 12, 2013,http://www.scmp.com/news/hong-kong/article/1353799/last-governor-chris-patten-speaks-regrets-over-hong-kong-democracy.

90. See So, supra note 86, at 65–67.91. See So, supra note 86, at 67–68; see also GHAI, supra note 31, at 75–78.92. So, supra note 86, at 67–68.93. GHAI, supra note 31, at 78. The creation of the Provisional Legislature

will be revisited at the end of this paper.94. Id.95. Rebellion: Forcing a Backdown over Hong Kong’s New Internal-Security

Law Could Be Only the Beginning, ECONOMIST, Jul. 10, 2003, http://www.econ-omist.com/node/1908260.


for democratization followed. Advocates of democracy, fortifiedby high protest turnout, called for the election of the Chief Exec-utive by universal suffrage in 2007. They also demanded theabolition of “functional constituency” legislators, who made uphalf of Legco and entrenched the influence of business and pro-fessional interests, by 2008.96

The Beijing and Hong Kong Governments swiftly moved todominate all subsequent discussion.97 On January 7, 2004, then-Chief Executive Tung Chee-hwa (董建華) announced the crea-tion of a Constitutional Development Task Force headed by SirDonald Tsang Yam-kuen (曾蔭權), then-Chief Secretary,98 toconsult the Central People’s Government (“Central Govern-ment”) on constitutional development. Tsang explained the needto consult Beijing in the following terms:

Taking into consideration our duty to uphold the Basic Law, aswell as political reality, we believe that we need to first initiatediscussions with the central authorities before determining theappropriate arrangements for the constitutional review . . . Atthe most basic level, this will avoid the central authorities andthe Hong Kong community reaching different understandingsof those Basic Law provisions regarding constitutional devel-opment. Such a scenario could cause serious confrontation be-tween the Hong Kong community and our sovereign govern-ment. Obviously, we do not want to precipitate such a situa-tion.99

On the same day, the HKMAO – an arm of the Beijing govern-ment – issued a press release emphasizing Hong Kong’s politicaldevelopment related to the implementation of “One Country,Two Systems” and to the relationship between the Central Gov-ernment and the Hong Kong SAR.100

96. Boasberg, supra note 28, at 331–32; GHAI, supra note 31, at 259–61; seeAlbert H.Y. Chen, The Constitutional Controversy of Spring 2004, 34 H.K. L.J.215, 215-16 (2004) [hereinafter Chen, Constitutional Controversy]. For a de-tailed explanation of functional constituencies, see YOUNG & LAW, supra note23. See also infra Part II.D.

97. Chen, Constitutional Controversy, supra note 96 at 216.98. Second in line only to the Chief Executive in Hong Kong’s executive hi-

erarchy.99. Press Release, H.K. Gov’t, Task Force to Study Constitutional Review

(Jan. 7, 2004), available at http://archive.news.gov.hk/isd/ebulletin/en/cate-gory/administration/040107/html/040107en01003.htm.100. Chen, Constitutional Controversy, supra note 96 at 216.


Beijing would soon dictate its views on democratic develop-ment to Hong Kong. On March 26, 2004, the NPCSC announcedthat it would consider issuing an interpretation of the Basic Lawprovisions governing Hong Kong’s political development at itsnext meeting.101 The deliberations were brief. On April 6, 2004,the NPCSC delivered its interpretation of Annexes I and II ofthe Basic Law (the “2004 Interpretation”).102 The 2004 Interpre-tation required the Chief Executive to report to the NPCSC onthe necessity of political reform, after which the NPCSC woulddetermine whether such reform was indeed necessary.103 TheNPCSC thus seized the political initiative for electoral reform.104

The Chief Executive obligingly submitted a report, stating thatthere was a need to amend the electoral arrangements for 2007and 2008, but that “development towards the ultimate aim ofuniversal suffrage must progress in a gradual and orderly man-ner step by step. The pace should not be too fast.”105 Armed withthe Chief Executive’s reservations, the NPCSC ruled out univer-sal suffrage in 2007 and 2008 in its Decision of April 26, 2004(the “2004 Decision”).106 A public relations offensive followed the

101. SOW KEAT TOK, MANAGING CHINA’S SOVEREIGNTY IN HONG KONG ANDTAIWAN 124 (2013).102. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Zhong-

hua Renmin Gongheguo Xianggang Tebie Xingzhengqu Jibenfa Fujian Yi DiQi Tiao He Fujian Er Di San Tiao de Jieshi(全國人民代表大會常務委員會關於《中華人民共和國香港特別行政區基本法》附件一第七條和附件二第三條的解釋) [Interpretation by the Standing Committeeof the National People’s Congress of Article 7 of Annex I and Article III of An-nex II to the Basic Law of the Hong Kong Special Administrative Region of thePeople’s Republic of China] (adopted by the Standing Comm. Nat’l People’sCong., Apr. 6, 2004), available at http://www.npc.gov.cn/wxzl/wxzl/2004-07/23/content_332218.htm [hereinafter 2004 Interpretation].103. Chen, Constitutional Controversy, supra note 96 at 218.104. Id.105. H.K. CHIEF EXEC., REPORT ON WHETHER THERE IS A NEED TO AMEND THE

METHODS FOR SELECTING THE CHIEF EXECUTIVE OF THE HONG KONG SPECIALADMINISTRATIVE REGION IN 2007 AND FOR FORMING THE LEGISLATIVE COUNCIL OFTHE HONG KONG SPECIAL ADMINISTRATIVE REGION IN 2008, at 4 (2004), availableat http://www.basiclaw.gov.hk/en/basiclawtext/index.html (select “Instrument19”).106. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiang-

gang Tebie Xingzhengqu 2007 Nian Xingzheng Zhangguan he 2008 Nian LifaHui Chansheng Banfa Youguan Wenti de Jueding (全國人民代表大會常務委員會關於香港特別行政區 2007 年行政長官和 2008 年立法會產生辦法有關問題的決定) [Decision of the Standing Committee of the National People’s Congress on


legal offensive. Between 2004 and 2005, Beijing officials andtheir Hong Kong supporters let loose a “barrage” of hostility to-ward advocates of democratization.107

F. 2007: Jam TomorrowIn March 2007, twenty-one pro-democracy legislators pre-

sented their proposal for electoral reform in 2012. Under thisproposal, all legislators would be elected through direct elec-tions, putting an end to functional constituencies. The Chief Ex-ecutive would be elected by universal suffrage from a list of can-didates nominated by at least fifty members of a 1200-strongnominating committee.108 The reform proposal became a key is-sue in the 2007 debates between Donald Tsang—by then run-ning for re-election as Chief Executive—and Alan Leong Ka-kit(梁家傑), the pro-democracy candidate. Confronted with contin-ued public demand for democratization, Tsang pledged that hewould pursue a timetable for democratization if he were re-elected.109 Tsang was duly re-elected; throughout April and May2007, democrats pressed Tsang to abide by his promise of a time-table for reform.110

Beijing reacted quickly. On June 6, 2007, Tsang was sum-moned before NPC President Wu Bangguo (吳邦國), who de-clared that the SAR had no “residual power” to decide on politi-cal reforms.111 On December 29, the NPCSC handed down its2007 Decision—ruling out universal suffrage for any elections in2012.112 The earliest possible date for Chief Executive electionsby universal suffrage, the NPCSC declared, was 2017—twenty

Issues Relating to the Methods for Selecting the Chief Executive of the HongKong Special Administrative Region in the Year 2007 and for Forming the Leg-islative Council of the Hong Kong Special Administrative Region in the Year2008] (adopted by the Standing Comm. Nat’l People’s Cong., Apr. 26, 2004),available at http://www.npc.gov.cn/wxzl/wxzl/2004-07/23/content_332215.htm[hereinafter 2004 Decision]. See also Michael C. Davis, The Basic Law and De-mocratization in Hong Kong, 3 LOY. U. CHI. INT’L L. REV. 165, 166–67 (2005).107. Davis, supra note 106, at 172–75.108. Baohui Zhang, Beijing’s 2007 Political Reform Plan and Prospects for

Hong Kong’s Democratization, 17 DEMOCRATIZATION 442, 447 (2010).109. Id.110. Id.111. Id. at 448.112. 2007 Decision, supra note 18.


years after the establishment of the SAR and more than thirtyyears after the signing of the Joint Declaration.113

G. 2009-2010: Divide and ConquerThe first clash over electoral reform after the 2007 Decision

began in November 2009, when the Hong Kong Government re-leased its “Consultation Document on the Methods for Selectingthe Chief Executive and for Forming the Legislative Council in2012” (the “2009 Proposals”).114 Under the 2009 Proposals, theElection Committee would swell in numbers to 1200 people, butits basic contours would remain unchanged.115 The number ofLegco seats would increase from sixty to seventy, with five newgeographical constituency and five new functional constituencyseats.116 The new functional constituency seats would be chosenby elected members of District Councils (local consultative as-semblies).117

Pro-democracy politicians criticized the 2009 Proposals fortheir lack of ambition, but became bitterly divided over how toreact.118 Legislators from the League of Social Democrats (社會民主連線, also known as 社民連; “LSD”) and the Civic Party (公民黨; “CP”) resigned in an attempt to trigger a “de facto referen-dum” on democratic reform. However, their efforts were ham-strung by the refusal of the Democratic Party of Hong Kong (民

113. Id.114. H.K. CONST. AND MAINLAND AFF. BUREAU, CONSULTATION DOCUMENT ON

THE METHODS FOR SELECTING THE CHIEF EXECUTIVE AND FOR FORMING THELEGISLATIVE COUNCIL IN 2012 (Nov. 18, 2009), http://www.cmab-cd2012.gov.hk/doc/consultation_document_en.pdf [hereinafter 2009CONSULTATION DOCUMENT]. See also Albert H.Y. Chen, Constitutional Develop-ments in Autumn 2009, 39 H.K.L.J. 751, 759–66 (2009) [hereinafter Chen, Con-stitutional Developments].115. 2009 CONSULTATION DOCUMENT, supra note 114, ¶¶ 4.07, 4.13. See also

Chen, Constitutional Developments, supra note 114, at 761–62.116. 2009 CONSULTATION DOCUMENT, supra note 114, ¶ 5.06. See also Chen,

Constitutional Developments, supra note 114, at 761.117. 2009 CONSULTATION DOCUMENT, supra note 114, ¶ 5.13. See also Chen,

Constitutional Developments, supra note 114, at 761, 764.118. Chen, Constitutional Developments, supra note 114, at 764–65; Albert

H.Y. Chen, An Unexpected Breakthrough in Hong Kong’s Constitutional Re-form, 40 H.K. L.J. 259, 259–60 (2010) [hereinafter Chen, Unexpected Break-through].


主黨 ; “Democratic Party”)—then Hong Kong’s largest pro-de-mocracy party—to participate.119 Instead, the Democratic Partyand other “moderate” democrats formed the Alliance for Univer-sal Suffrage (終極普選聯盟) to negotiate with the Hong Kong andBeijing Governments.120

Beijing adeptly exploited the divisions between “moderate”and “radical” democrats. It strongly condemned the “de facto ref-erendum”; pro-Beijing politicians boycotted the by-elections.121

Meanwhile, the Central Government’s Hong Kong liaison office(the “Liaison Office”) hosted an unprecedented series of meet-ings with “moderate” democrats.122 As a result of these talks, the2009 Proposals received Legco approval in 2010, with minimalmodifications.123

The Democratic Party’s decisions to negotiate with Beijing andto vote in favor of the revised 2009 Proposals provoked wide-spread recriminations.124 Beset by criticism from other pro-de-mocracy parties and accused by the public of betrayal, 125 theparty won only four out of thirty-five available GeographicalConstituency seats in the 2012 Legco elections.126 Its Faustianpact not only split the pro-democracy parties into “moderate”and “radical” camps; it also highlighted the steep political priceof advancing proposals deemed to be politically unambitious.

119. See Chen, Unexpected Breakthrough, supra note 118, at 259–60; HongKong MPs Quit in Attempt to Push Beijing Towards Direct Elections, GUARDIAN(Jan. 26, 2010, 9:00 AM), http://www.theguard-ian.com/world/2010/jan/26/hong-kong-democracy-bid.120. Chen, Unexpected Breakthrough, supra note 118, at 260.121. Id. at 260–61.122. Id. at 261.123. Id. at 262–64. As with the original 2009 Proposals, elected District

Councilors would nominate candidates for the five new Functional Constitu-ency seats. However, Hong Kong voters not already enrolled in an existingFunctional Constituency would choose among the nominated candidates. Seeid. at 263.124. See id. at 265.125. See, e.g., Anne-Marie Evans, Pro-Democracy Parties Hold Protests in

Hong Kong, BBC NEWS (July 1, 2010), http://www.bbc.co.uk/news/10480116;Suzanne Pepper, A Replay of 2010?, CHINA ELECTIONS AND GOVERNANCE BLOGS(Sept. 4, 2013, 8:43 AM), http://chinaelectionsblog.net/hkfocus/?p=637.126. Simon Lee, Hong Kong Democrat Leader Albert Ho to Resign on Election

Result, BLOOMBERG, Sept. 9, 2012, available at http://www.bloom-berg.com/news/2012-09-10/hong-kong-democrat-leader-albert-ho-to-resign-on-election-result.html.


H. 2012: Playing CharadesThe decline of “moderate” democrats was not the only factor to

shape subsequent political debate. The process by which C.Y.Leung was selected to be Hong Kong’s third Chief Executivethrew a spotlight on the defects of the existing system of selec-tion.127

Leung’s anointment ended a long, bruising campaign betweenLeung (previously Convenor of the Executive Council, HongKong’s cabinet) and Henry Tang Ying-yen (唐英年; previouslyChief Secretary). 128 Tang, originally the front-runner, 129 wassoon embroiled in scandals over marital infidelity and an unau-thorized underground extension in his home.130 Leung, for hispart, was tarred with suggestions that he was an undergroundmember of the Communist Party131 and that he had proposedthe use of “riot police and tear gas” to quell protests in 2003.132

Members of the Election Committee alleged that the Liaison Of-fice had openly urged them to support Leung.133 Others soughtto divine Beijing’s chosen candidate.134 By the final stages of the

127. The Economist described the process as “Byzantine” and “[b]orn ofChina’s fear of leaders with a genuine electoral mandate” calculated to “cloaka decision taken elsewhere in some semblance of popular consultation.” HongKong’s Chief-Executive “Election”: The Worst System, Including All the Others,supra note 22.128. Albert Ho also ran, but had no prospect of success: Hong Kong Protests:

No Exit, ECONOMIST, Oct. 4, 2014, http://www.econo-mist.com/news/china/21621846-days-student-led-unrest-hong-kong-are-crisis-chinas-communist-party-no-exit.129. Id.130. Gary Cheung & Tanna Chong, C.Y. Leung Seeks Unity After Divisive

Poll, S. CHINA MORNING POST (H.K.), Mar. 26, 2012, http://www.scmp.com/arti-cle/996589/cy-leung-seeks-unity-after-divisive-poll.131. Lee, supra note 64.132. Tanna Chong, Complaints Pour in Over Poll for Chief Executive, S.

CHINA MORNING POST (H.K.), Mar. 29, 2012, http://www.scmp.com/arti-cle/996959/complaints-pour-over-poll-chief-executive.133. Id. See also Beijing Lobbies in Push for a Leung Victory, S. CHINA

MORNING POST (H.K.), Mar. 21, 2012, http://www.scmp.com/article/996111/bei-jing-lobbies-push-leung-victory.134. Tanna Chong & Peter So, Delegates Await Word of Beijing’s Thinking

on Race, S. CHINA MORNING POST (H.K.), Mar. 4, 2012,http://www.scmp.com/article/994424/delegates-await-word-beijings-thinking-race.


race, some electors were considering whether to force a new elec-tion by casting blank ballots.135

Meanwhile, attempts at introducing public opinion, if not par-ticipation, were savaged. Hao Tiechuan (郝鐵川), propagandachief at the Liaison Office, suggested the regulation of opinionpolls, ostensibly to reduce partisan influence.136 Perhaps not sur-prisingly, an electronic public mock election organized by theUniversity of Hong Kong came under sustained hacking attacks,forcing voters to cast paper ballots.137

Leung’s selection did not end the controversy. Shortly afterwinning the “election,” Leung made a ninety-minute visit to theLiaison Office—three times as long as his meeting with outgoingChief Executive Donald Tsang—raising suspicions that the Li-aison Office had intervened to secure Leung’s election. 138

Leung’s credibility suffered further damage when—ironically—the press later discovered illegal structures at his own home.139

I. The Current DebateProfessor Albert Chen (陳弘毅), writing about the 2007 Deci-

sion, observed that “[i]t is . . . unlikely that the Decision will havethe effect of reducing significantly controversies regarding Hong

135. Vaudine England, Hong Kong Election: All Bets Off After Frontrunner’sCalamitous Campaign, GUARDIAN (Mar. 23, 2012, 1:34 PM),http://www.theguardian.com/world/2012/mar/23/hong-kong-election.136. Colleen Lee, Liaison Office Man Airs Pre-Election Polling Curbs, S.

CHINA MORNING POST (H.K.), Mar. 22, 2012, http://www.scmp.com/arti-cle/996230/liaison-office-man-airspre-election-polling-curbs.137. Chi-fai Cheung, Pair Held Over Hacking of Mock Poll, S. CHINA

MORNING POST (H.K.), Mar. 26, 2012, http://www.scmp.com/arti-cle/996598/pair-held-over-hacking-mock-poll.138. Tanna Chong, Gary Cheung, & Colleen Lee, I Won’t Be a Yes Man, Says

Leung, S. CHINA MORNING POST (H.K.), Mar. 28, 2012, http://www.scmp.com/ar-ticle/996786/i-wont-be-yes-man-says-leung.139. Tony Cheung, Joshua But & Joyce Ng, Hong Kong Chief Executive Sur-

vives No Confidence Challenge, S. CHINA MORNING POST (H.K.), Dec. 13, 2012,http://www.scmp.com/news/hong-kong/article/1103900/hong-kong-chief-execu-tive-survives-no-confidence-challenge.


Kong’s political development.”140 That remark has proved pres-cient.141 The NPCSC’s 2004 and 2007 Decisions delayed demo-cratic elections for Chief Executive from 2007 to 2017. The sub-sequent attempt by the Democratic Party to achieve compromiseon electoral reform in 2010 split the pro-democracy camp andresulted in electoral defeat. The 2012 “election” of C.Y. Leungagain exposed the shortcomings of the existing method of selec-tion. The effect of Beijing’s continued prevarication over elec-toral reform was not the abandonment of demands for democ-racy, but the intensification and radicalization of such de-mands.142

1. 2013: The Moderates Lose PatienceBeijing’s interference with Hong Kong’s democratic develop-

ment had long been a source of public anger. The eruption of thatresentment in 2013 was nonetheless surprising, both in itssource and its ferocity. March 27 marked the debut of a socialmovement called Occupy Central with Love and Peace (讓愛與和平佔領中環, also known as 佔領中環; “Occupy Central”).143 A re-action to growing frustration with Beijing’s continued oppositionto democracy in Hong Kong,144 the movement had three cardinalprinciples. First, Hong Kong’s electoral system must complywith international standards of universal suffrage—encompass-ing the number of votes per person, the weight to be accorded toeach vote, and the right to stand for election.145 Second, concreteproposals for reform should be decided through deliberation and

140. Albert H.Y. Chen, A New Era in Hong Kong’s Constitutional History, 38H.K. L.J. 1, 11 (2008).141. See Chen, Unexpected Breakthrough, supra note 118.142. See, e.g., Langer, supra note 17.143. “Central” refers to Hong Kong’s central business district.144. See Benny Y.T. Tai, 公民抗命的最大殺傷力武器 [The Most Destructive

Weapon of Civil Disobedience], H.K. ECON. J., Jan. 16, 2013, available athttp://oclp.hk/index.php?route=occupy/article_detail&article_id=23, & Kin-man Chan,讓愛與和平佔領中環 [Let Love and Peace Occupy Central], MINGPAO(H.K.), Mar. 4, 2013, available at http://oclp.hk/index.php?route=occupy/arti-cle_detail&article_id=19. See also Suzanne Pepper, The 2017 Reform Cam-paign: First Draft Proposals, CHINA ELECTIONS AND GOVERNANCE BLOGS (Aug.5, 2013, 5:41 AM), http://chinaelectionsblog.net/hkfocus/?p=631.145. XINNIAN SHU, MANIFESTO: OCCUPY CENTRAL WITH LOVE & PEACE (信念書

), available at http://oclp.hk/index.php?route=occupy/book_detail&book_id=11(last visited Sept. 27, 2013).


civic authorization.146 Third, any act of civil disobedience in thestruggle for universal suffrage must be nonviolent.147 The sub-stantive proposals themselves would be decided in a series of De-liberation Days.148

Occupy Central was not an isolated phenomenon. Six days ear-lier, on March 21, twelve pro-democracy political groups formedthe Alliance for True Democracy (真普選聯盟; “ATD”) to garnerpublic support in the debate over political reform. 149 It, too,called for universal and equal suffrage and rejected any “filter-ing” of Chief Executive candidates.150

The concern shared by Occupy Central and the Alliance forTrue Democracy—that Beijing would never allow truly demo-cratic elections in Hong Kong—was not unfounded. On March24, Qiao Xiaoyang (喬曉陽), Chairman of the NPC’s Law Com-mittee, stated in a closed-door meeting that “chief executive can-didates must be persons who love the country and love HongKong, while the methods in the universal suffrage must matchwith the Basic Law and the decisions by the [NPCSC].”151

Qiao maintained that it was the “clear and consistent” policyof the Central Government that no person who “confronts” theCentral Government could become Chief Executive, citing DengXiaoping’s statement that Hong Kong must be run by people who“love the motherland and Hong Kong.”152 Although Qiao admit-ted “confronting the Central Government” could not be defined

146. Id.147. Id.148. Id. The idea of Deliberation Day originated from BRUCE A. ACKERMAN &

JAMES S. FISHKIN, DELIBERATION DAY (2004).149. Joshua But, Pan-Democrats Unite for 2017 Vote, S. CHINA MORNING POST

(H.K.), Mar. 22, 2013, http://www.scmp.com/news/hong-kong/arti-cle/1196604/pan-democrats-unite-genuine-universal-suffrage.150. ALLIANCE FOR TRUE DEMOCRACY, MANIFESTO (Mar. 21, 2013), available at

http://www.atd.hk/en/?page_id=10.151. Joshua But & Colleen Lee, Opponents of Beijing Ineligible to be CE: Top

Chinese Official, S. CHINA MORNING POST (H.K.), Mar. 24, 2013,http://www.scmp.com/article/1199015/opposition-camp-members-cant-run-chief-executive-says-npc-official?page=all.152. Deng Xiaoping, One Country, Two Systems, PEOPLE’S DAILY (Jun. 22–23,

1984), http://english.peopledaily.com.cn/dengxp/vol3/text/c1210.html. Qiao didnot, however, cite Deng’s explanation of what he meant by a “patriot.” “A pa-triot is one who respects the Chinese nation, sincerely supports the mother-land’s resumption of sovereignty over Hong Kong and wishes not to impairHong Kong’s prosperity and stability. Those who meet these requirements are


with substantive criteria or written law, he insisted that theNominating Committee, the Hong Kong electorate, and the Cen-tral Government should each decide whether a candidate metthat requirement. Most disturbingly for pro-democracy politi-cians, he hinted that the Central Government’s patience hadlimits and that no consultation on political reform could beginunless they accepted that no “confrontational” candidate couldever become Chief Executive.153

Pro-democracy politicians derided Qiao’s comments as pavingthe way for a pre-selection mechanism inconsistent with univer-sal suffrage.154 Audrey Eu Yuet-mee (余若薇) of the Civic Partydescribed Qiao’s speech as a “big con.”155 Beijing has done littleto assuage such concerns.156 Zhang Xiaoming (張曉明), head ofthe Liaison Office, emphasized the need to eliminate politicallyundesirable candidates. 157 Professor Albert Chen and MariaTam Wai-chu (譚惠珠), both members of the NPCSC’s Basic Law

patriots, whether they believe in capitalism or feudalism or even slavery. Wedon’t demand that they be in favour of China’s socialist system; we only askthem to love the motherland and Hong Kong.” Id.153. Qiao, supra note 19.154. 喬曉陽高調定底線中央架空港府應戰泛民 [Qiao Xiaoyang’s High-Profile

Setting of a Bottom Line; Central Government Going Over the H.K. Govern-ment’s Head to Fight Pan-Democrats], HOUSE NEWS (Mar. 25, 2013) (copy onfile with author).155. Id.156. Beijing has quite literally “stuck to its guns.” The People’s Liberation

Army (“PLA”) Hong Kong Garrison intensified its live-fire training shortly be-fore July 1, 2013. 解放軍日夜操炮居民煩爆 [PLA Firing Exercises Day andNight Annoy Residents], APPLE DAILY (H.K.), Jun. 15, 2013, http://hk.ap-ple.nextmedia.com/news/art/20130615/18298331. The Global Times—knownfor its belligerent editorial views—raised the possibility of a PLA deploymentagainst Occupy Central.官媒：解放軍隨時應付佔中 [Official Media: PLA Readyto Deal with Occupy Central], APPLE DAILY (H.K.), Sept. 23, 2013, http://hk.ap-ple.nextmedia.com/news/art/20130923/18434574.157. 張曉明以「筲箕」論特首篩選堅決反對佔中 [Zhang Xiaoming Uses

“Sieve” as Metaphor for Eliminating Chief Executive Candidates, AdamantlyOpposes Occupy Central], H.K. ECON. J. FORUM, http://fo-rum.hkej.com/node/103480 (last visited Sept. 28, 2013); 張曉明筲箕妙喻民主程序 [Zhang Xiaoming Uses Sieve as Metaphor for Democratic Process], TA KUNGPAO (H.K.), http://news.takungpao.com.hk/hkol/politics/2013-07/1766874.html(last visited Sept. 28, 2013).


Committee (“BLC”), have differed in their proposals for nomina-tions—but both have assumed that the public will have no powerto make binding nominations.158

The pro-Beijing counter-mobilization continued over the sum-mer and autumn of 2013. On August 8, the pro-Governmentgroup “Silent Majority for Hong Kong” (幫港出聲) was set up,with no clear agenda other than opposition to Occupy Central.159

The Hong Kong and Beijing Governments brusquely rebuffedstatements by the U.K. FCO and the U.S. Consul-General insupport of universal suffrage.160 Comments by Lord Patten ofBarnes (as Chris Patten had become) dismissing attempts at re-sisting increased political freedom as “spitting in the wind” drewharsh comments from the PRC Foreign Ministry and official me-dia.161

Beijing continued to ratchet up its rhetoric in late 2013. In No-vember 2013, Hong Kong media reported that former HKMAODeputy Director Chen Zuo-er (陳佐洱), known for his bellicoseHong Kong policy, would set up a think-tank on Hong Kong andMacau policy.162 In the same month, BLC Chairman Li Fei (李飛

158. Tony Cheung, Beijing Loyalists Split on Picking Top Job Hopefuls, S.CHINA MORNING POST (H.K.), Sept. 21, 2013, http://www.scmp.com/news/hong-kong/article/1314061/beijing-loyalists-split-picking-top-job-hopefuls.159. See Tony Cheung, Silent Majority for Hong Kong Takes on Occupy Cen-

tral in Campaign ‘to Protect City’s Interests’, S. CHINA MORNING POST (H.K.),Aug. 9, 2013, http://www.scmp.com/news/hong-kong/article/1295407/speaking-silent-majority. The link between the phrase “silent majority” and RichardNixon’s divisive electoral strategy appears to have been lost on the organizersof “SMHK.” See WILLIAM H. CHAFE, PRIVATE LIVES/PUBLIC CONSEQUENCES:PERSONALITY AND POLITICS IN MODERN AMERICA, 263–64 (2009).160. See supra Introduction.161. Patten Under Fire for Interfering, STANDARD (H.K.), Nov. 14, 2013,

http://www.thestandard.com.hk/news_de-tail.asp?we_cat=4&art_id=139580&sid=40882515&con_type=1&d_str=20131114&fc=7; Zhang Dinghuai, Patten’s Interference Finds Little Audience,GLOBAL TIMES, Nov. 21, 2013, http://www.globaltimes.cn/con-tent/826788.shtml. For a summary of the interview, see Natasha Brereton-Fu-kui, Hong Kong Ex-Governor: To Resist Elections Is ‘Spitting in The Wind’,CHINA REAL TIME (Nov. 11, 2013, 3:11 PM), http://blogs.wsj.com/china-realtime/2013/11/11/former-governor-hong-kong-independence-vital-to-terri-tory-china/.162. See陳佐洱出山組超級智囊團 [Chen Zuo-er Emerges From Retirement to

Form Super Think-Tank], SING TAO DAILY (H.K.), Nov. 11, 2013,http://std.stheadline.com/yesterday/loc/1126ao01.html. See also 星島：陳佐洱辦智庫研港政改劉兆佳任副會長 [Sing Tao: Chen Zuo-er to Form Think-Tank on


) emphasized, during a high-profile visit to Hong Kong, that thepower to nominate rested in a Nominating Committee and thatthe post of Chief Executive “must be taken up by a person wholoves the country as well as Hong Kong.”163

Beijing’s increasingly bombastic tone put the Hong Kong Gov-ernment in an invidious position. Yet the latter did little to lowerthe political temperature. It released its consultation documenton 2017 electoral reform in December 2013, 164 amidst wide-spread suspicion that the consultation was purely cosmetic.165

The consultation document quoted extensively from speeches byMainland officials, prompting allegations that the Hong KongGovernment treated the speeches as “holy orders.”166 It was alsoreplete with leading questions regarding the composition of theNominating Committee.167 Yet the document made no referenceto the ICCPR, Article 39 of the Basic Law, or the Bill of RightsOrdinance (transposing part of the ICCPR into Hong Kong

Hong Kong Political Reforms; Lau Siu-Kai to be Vice-Chairman], HOUSE NEWS(Nov. 26, 2013) (copy on file with author).163. Tony Cheung & Tanna Chong, Catch-22 Situation Looms Over Election

for Chief Executive in 2017, S. CHINA MORNING POST (H.K.), Nov. 22, 2013,http://www.scmp.com/news/hong-kong/article/1363262/catch-22-situation-looms-over-election-chief-executive-2017. See also Jeffie Lam, Top BeijingBasic Law Official Dashes Hopes of Pan-Democrats, S. CHINA MORNING POST(H.K.), Nov. 23, 2013, http://www.scmp.com/news/hong-kong/arti-cle/1364088/top-beijing-basic-law-official-dashes-hopes-pan-democrats.164. 2013 CONSULTATION DOCUMENT, supra note 24.165. See Chong & Lau, supra note 24; see also Chong & Cheung, supra note

24.166. See, e.g., Au Nok-hin,京官是聖旨的政改諮詢 [A Political Reform Consul-

tation Where Beijing’s Officials Dictate Holy Orders], MINGPAO (H.K.), Dec. 6,2013. Hong Kong 2020 (a think-tank headed by former Chief Secretary AnsonChan) and the pro-democracy Civic Party have issued a joint report with ex-tensive criticisms of the consultation document. See CIVIC PARTY & HONG KONG2020, FINDING THE RIGHT PATH TO UNIVERSAL SUFFRAGE: WHAT THEGOVERNMENT IS NOT TELLING YOU (2014). 陳太公民黨聯手轟政改諮詢六倒退[Anson Chan and Civic Party Join Hands, Blast Consultation’s Six Instancesof Back-Sliding], MINGPAO (H.K.), Jan. 7, 2014. Contra, 指喬曉陽言論提供參考袁國強：非法律框架解說 [Qiao Xiaoyang’s Comments for Reference Only; (Sec-retary for Justice) Rimsky Yuen: Not Explanation of Legal Framework],MINGPAO (H.K.), Jan. 7, 2014.167. 2013 CONSULTATION DOCUMENT, supra note 24, ch. 5, ¶¶ 5.01–.05, at 38–

39.


law).168 Worse still, it avoided the elephant in the room—whatthe phrase “loving the country and loving Hong Kong” actuallymeant. The explanation by Chief Secretary Carrie Lam ChengYuet-ngor (林鄭月娥)—that the meaning of the phrase was “self-evident”—did nothing to dispel public suspicions.169 Nor did theGovernment’s dismissal of a public poll commissioned by OccupyCentral and conducted by the Hong Kong University PublicOpinion Program.170 The fact that the then-Chairman of theHong Kong Bar Association warned the Hong Kong Governmentagainst presenting political objections to reform proposals as le-gal objections illustrates the extent to which the latter was sus-pected of whitewashing.171

2. 2014: Beijing’s Gloves Come Off; Hong Kong’s UmbrellasCome Out

As 2013 gave way to 2014, Beijing’s hardline stance showed nosigns of abating. On January 9, 2014, Hao Tiechuan declaredthat the Central Government would declare a state of emergencyif events in Hong Kong went “out of control,” presumably athreat directed at Occupy Central.172 On March 6, 2014, ZhangDejiang (張德江), Chairman of the NPC, declared that any per-son selected for Chief Executive would have to “love the country

168. See FINDING THE RIGHT PATH TO UNIVERSAL SUFFRAGE, supra note 166,ch. 2, ¶¶ 2.02–03.169. 愛國被指不言而喻 [Patriotism Described as Self-Evident], APPLE DAILY

(H.K.), Dec. 5, 2013. See also But, supra note 149.170. 林鄭：元旦投票無大參考幫助 [Carrie Lam: New Year’s Poll Has Little

Evidential Value], MINGPAO (H.K.), Jan. 3, 2014. More than 90 percent of the62,000 people surveyed rejected “pre-screening” by Beijing. Michelle Yun,Hong Kong Survey Shows Most People Want Open Elections in 2017,BLOOMBERG, Jan. 1, 2014, available at http://www.bloomberg.com/news/2014-01-02/hong-kong-survey-shows-most-people-want-open-elections-in-2017.html.171. Paul Shieh S.C., Chairman of the H.K. Bar Ass’n, Speech at the Opening

of the Legal Year 2014 (Jan. 13, 2014), http://hkba.org/whatsnew/chairman-corner/speeches/2014/Speech%20for%20the%20Opening%20of%20the%20Le-gal%20Year%202014%20-%20webpage%20(E).pdf.172. 郝鐵川：中央可宣佈香港緊急狀態 [Hao Tiechuan: Central Government

Can Declare State of Emergency in Hong Kong], HOUSE NEWS (Jan. 9, 2014)(copy on file with author).


and love Hong Kong.”173 He also asserted that there were no ab-solute rules for democratic development and that emulation ofdemocratic practices from overseas could result in social and eco-nomic catastrophe.174 On June 10, 2014, the State Council Infor-mation Office issued a White Paper on the Implementation of“One Country, Two Systems” in Hong Kong (“the White Pa-per”);175 it asserted that Beijing “directly exercises jurisdictionover the HKSAR” and reiterated that “all those who adminis-trate Hong Kong” were required to be “patriotic.”176

Despite these efforts, the pro-democracy camp remained unde-terred. Between June 20 and June 29, Occupy Central held areferendum with the assistance of the Hong Kong UniversityPublic Opinion Program. Despite “one of the largest and mostsophisticated denial-of-service attacks in the Internet’s his-tory,”177 nearly 800,000 voters participated.178 All three electoralreform proposals on the ballot involved civil nomination of ChiefExecutive candidates; collectively, the three proposals receivedsupport from 91 percent of participating voters.179 In addition,87.8 percent of participating voters agreed that Legco shouldveto any proposal that was inconsistent with internationalstandards.180 Galvanized by the White Paper and the OccupyCentral referendum, 510,000 people participated in the annual

173. 「另搞一套影響普選實現」張德江亮底線陳健民：難坐低談判 [“Doingtheir own thing affects fulfilment of universal suffrage”: Zhang Dejiang Re-veals Bottom Line; Chan Kin-man: Difficult to Negotiate], MINGPAO (H.K.),Mar. 7, 2014.174. Id.175. OFFICE OF THE COMM’R OF THE MINISTRY OF FOREIGN AFFAIRS OF CHINA IN

H.K., The Practice of the “One Country, Two Systems” Policy in the Hong KongSpecial Administrative Region (June 10, 2014),http://www.fmcoprc.gov.hk/eng/xwdt/gsxw/t1164057.htm [hereinafter WhitePaper].176. Id. The implications of the White Paper for judicial independence are

outside the scope of this article.177. Paul Mozur & Chester Yung, Hong Kong Democracy Poll Hit by Cyberat-

tack, WALL ST. J., June 20, 2014, http://online.wsj.com/articles/hong-kong-de-mocracy-poll-is-hit-by-cyberattack-1403258663.178. Hong Kong Democracy “Referendum” Draws Nearly 800,000, BBC NEWS

(June 30, 2014), http://www.bbc.com/news/world-asia-china-28076566.179. Press Release, Occupy Central with Love and Peace, Nearly 800 Thou-

sand Hong Kong People Voted Against Non-Genuine Universal Suffrage (June30, 2014), http://oclp.hk/index.php?route=occupy/eng_detail&eng_id=15.180. Id.


July 1 pro-democracy march;181 500 engaged in an overnight sit-in in Central.182

Beijing’s supporters stepped up their opposition to democratsover the summer of 2014. In June, the Hong Kong offices of the“big four” accounting firms warned against Occupy Central in aprint advertisement.183 An anti-Occupy Central petition alleg-edly gathered 1.4 million signatures, some of dubious origin orprocured under suspicious circumstances;184 C.Y. Leung evensigned the petition in his “personal capacity.”185 A subsequentprotest march on August 17 against Occupy Central was at-tended by a large number of paid and bussed-in protesters, manyof whom were from Mainland China.186

The Hong Kong and Central Governments also played a rolein the city’s summer of discontent. On July 15, 2014, the HongKong Government released its Consultation Report (the “2014Consultation Report”) and submitted a report to Beijing on elec-toral reform.187 The reference in the 2014 Consultation Report’sreference to “mainstream opinion” backing political vetting of

181. See Keith Bradsher, Michael Forsythe & Chris Buckley, Huge CrowdsTurn Out for Pro-Democracy March in Hong Kong, Defying Beijing, N.Y. TIMES,July 1, 2014, http://nyti.ms/1rauNcy.182. Alan Wong, Police Make More Arrests in Huge Hong Kong Protest,

SINOSPHERE (July 4, 2014, 6:47 AM), http://sinosphere.blogs.ny-times.com/2014/07/04/police-make-more-arrests-in-huge-hong-kong-pro-test/?_php=true&_type=blogs&_r=0.183. See, e.g., Enda Curran, Kathy Chu & James T. Areddy, Hong Kong Elec-

tion Ruling Stirs Fear Over City’s Status as Finance Hub, WALL ST. J., Sept. 1,2014, http://online.wsj.com/articles/beijing-decree-stirs-fear-over-hong-kong-status-as-finance-hub-1409615560.184. Learning From the Enemy, ECONOMIST, Aug. 23, 2014, http://www.econ-

omist.com/news/china/21613292-damaging-confrontation-looms-over-election-2017-learning-enemy; 部分街站無核對簽名者不知主題 [Some Street StandsFail to Verify Signatures; Signatories Unaware of Topic], MINGPAO (H.K.), July20, 2014.185. 梁振英:將簽名撐「反佔中」 [C.Y. Leung: Will Sign Petition Supporting

“Anti-Occupy”], MINGPAO (H.K.), July 27, 2014.186. See Learning From the Enemy, supra note 184.187. Press Release, H.K. Gov’t, Opening Remarks by CE at Press Conference

on Release of Constitutional Development Public Consultation Reports (July15, 2014), http://www.info.gov.hk/gia/general/201407/15/P201407150690.htm.


candidates vindicated critics’ skepticism toward the consulta-tion process.188 Although the 2014 Consultation Report left lim-ited scope for compromise, 189 commentators nonetheless re-mained optimistic.

All such hopes, however, were dashed with the 2014 Decision.In its wake, Benny Tai declared, “[t]he road of dialogue has cometo the end.”190 In protest against the 2014 Decision, the HongKong Federation of Students (HKFS), a group representing uni-versity students, organized a weeklong class boycott starting onSeptember 22, 2014, which was joined by secondary school stu-dents on September 26.191 On the night of September 26, protest-ing students scaled a fence to enter the forecourt of Hong KongGovernment Headquarters, known as Civic Square. 192 Policemoved in with batons and pepper spray and took the protest-ers—including HKFS leaders Alex Chow (周永康) and LesterShum (岑敖暉), as well as Joshua Wong (黃之鋒), leader of thestudent protest group Scholarism—into custody.193 In the early

188. See Suzanne Pepper, Telling Beijing What Beijing Wants to Hear, CHINAELECTIONS & GOVERNANCE BLOGS (July 17, 2014, 4:55 AM), http://chinaelec-tionsblog.net/hkfocus/?p=915 [Pepper, Telling Beijing]; No Panderers, Please:This Issue’s Black and White, ECONOMIST, July 19, 2014, http://www.econo-mist.com/news/leaders/21607855-time-britain-rediscover-its-moral-compass-and-confront-china-over-hong-kong-no-panderers. The “mainstream opinion”in question appears to have consisted in large part of pro forma submissionssent as a result of mobilization by pro-Beijing parties. See建制表格式意見書製造萬計民意 [Establishment Parties’ Pro-Forma Submissions Create Tens ofThousands in Public Opinion], MINGPAO (H.K.), July 16, 2014.189. See Pepper, Telling Beijing, supra note 188.190. Political City: Denied Free Elections, Hong Kong’s Democrats Plan, Re-

luctantly, for Protest, ECONOMIST, Sept. 6, 2014, http://www.econo-mist.com/news/china/21615636-denied-free-elections-hong-kongs-democrats-plan-reluctantly-protest-political-city.191. Timeline: Hong Kongers Call for Democracy and Universal Suffrage,

HUM. RTS. IN CHINA, http://www.hrichina.org/en/timeline-hong-kongers-call-democracy-and-universal-suffrage (last visited Mar. 5, 2015).192. See Bei Hu, Hong Kong Police Arrest Six in Clash With Democracy Pro-

testers, BLOOMBERG, Sept. 27, 2014, available at http://www.bloom-berg.com/news/articles/2014-09-27/hong-kong-police-arrest-six-in-clash-with-democracy-protesters.193. See Chris Buckley & Alan Wong, Pro-Democracy Students Are Arrested

in Hong Kong, N.Y. TIMES, Sept. 26, 2014, http://www.ny-times.com/2014/09/27/world/asia/hong-kong-democracy-leader-says-limits-harm-rest-of-china.html; David Lague, James Pomfret, & Greg Torode, SpecialReport: In “Umbrella Revolution,” China Confronts Limits of Its Power,


hours of September 28, after police moved to surround protestersgathered near Civic Square in support of the students, BennyTai declared that Occupy Central had begun—days earlier thanthe movement’s originally scheduled date of October 1.194 Laterthat day, the police deployed teargas against the assembled, un-armed crowd. 195 The Umbrella Movement had begun in ear-nest.196

3. Who Gets to Nominate?As the debate over election of the Chief Executive in 2017 de-

veloped, controversy has centered on the nomination process, in-cluding the composition of the Nominating Committee and thecriteria for nomination. Although there was some initial debateover the process of appointment—in particular, whether Beijingmay veto a duly elected candidate—nomination remains the cen-tral cause of disagreement.

Over the course of 2013, several nomination proposalsemerged, varying in levels of public participation. One of the ear-liest and most conservative proposals came from Martin LeeChu-ming (李柱銘), a founding member of the Democratic Party.Lee proposed that the current Election Committee be renamedas the Nominating Committee, but that it be required to nomi-nate five candidates. The latter requirement, Lee reasoned,

REUTERS, Oct. 1, 2014, available at http://www.reuters.com/arti-cle/2014/10/01/us-hongkong-china-specialreport-idUSKCN0HQ4ZA20141001.194. See Chris Buckley & Alan Wong, Pro-Democracy Group Shifts to Collab-

orate With Student Protesters in Hong Kong, N.Y. TIMES, Sept. 27, 2014,http://www.nytimes.com/2014/09/28/world/asia/pro-democracy-protest-in-hong-kong.html.195. Press Release, H.K. Bar Ass’n, Statement of the Hong Kong Bar Associ-

ation on the Use of Force by the Hong Kong Police at Harcourt Road on 28September 2014 (Sept. 29, 2014),http://www.hkba.org/whatsnew/misc/20140929-Press_State-ment_of_HKBA_29_September_2014.pdf.196. On the genesis and chronology of the Umbrella Movement, see generally

Lauren Hilgers, Hong Kong’s Umbrella Revolution Isn’t Over Yet, N.Y. TIMESMAG., Feb. 18, 2015, http://www.nytimes.com/2015/02/22/magazine/hong-kongs-umbrella-revolution-isnt-over-yet.html. A detailed exposition of the Um-brella Movement and its aftermath is beyond the scope of this article.


would secure the nomination of at least one pro-democracy poli-tician.197 Lee’s proposal—which he had not discussed with theDemocratic Party—met with a “cool reception”; Lee retracted itwithin two days.198

On May 8, 2013, the ATD set out what it described as “initialviews for consultation.” Among the initial views were the follow-ing propositions:

(1) The electoral system must guarantee the right tovote, the right to be elected and the right to nominate;(2) There should be no “preliminary election,” “screen-ing,” or conditions for candidacy that cannot be objec-tively defined, such as “no confrontations with Beijing”;(3) The Nominating Committee infringes free and fairdemocratic principles. It should be formed by universalsuffrage and should ultimately be scrapped; and(4) If a set proportion of Hong Kong voters nominates aparticular person by signatures, the nominated personshould become a candidate after the Nominating Com-mittee verifies and endorses the public nomination.199

Two months later, on July 20, the ATD unveiled its three sub-stantive proposals for 2017:

(1) Proposal One. The Nominating Committee wouldresemble the current Election Committee in composi-tion, albeit with the addition of directly elected DistrictCouncilors. Any candidate would have to be nominatedby at least one tenth of the Committee’s members, orby at least 2% of registered voters in geographical con-stituency elections;(2) Proposal Two. The Nominating Committee wouldbe directly elected by registered voters in geographicalconstituencies, by proportional representation. Any

197. Suzanne Pepper, An Old Cat Singes His Whiskers, CHINA ELECTIONS &GOVERNANCE BLOGS (May 2, 2013, 6:46 AM), http://chinaelec-tionsblog.net/hkfocus/?p=574.198. Id.199. ALLIANCE FOR TRUE DEMOCRACY, 2017 Chief Executive Election—Initial

Views for Consultation, http://www.atd.hk/en/?page_id=105 (last visited Jan.21, 2014).


candidate would have to be nominated by at least onetenth of the Committee’s members; and(3) Proposal Three. The Nominating Committeewould be composed of all elected District Councilors,and all elected Legislative Councilors. Any candidatewould have to be nominated by at least one tenth of theCommittee’s members, or by at least 2% of registeredvoters in geographical constituency elections.200

Establishment figures responded with skepticism. Pro-Beijingpolitician Tam Yiu-chung (譚耀宗) argued that the NominatingCommittee should be chosen from social sectors, along the linesof the current Election Committee.201 Rao Geping (饒戈平), a sen-ior BLC member, criticized the civil nomination process as hav-ing no legal basis in the Basic Law.202

The failure of more moderate proposals to gain momentum leftan opening for more bolder suggestions. On July 29, 2013, thesecondary school student activist group, Scholarism (學民思潮),announced that it would devote its energies to canvassing forpolitical reform.203 Two days later, it declared that it would de-mand civil nomination of candidates for Chief Executive.204 Howcould there be a more “broadly representative” NominatingCommittee, Scholarism asked, than a body composed of the en-tire Hong Kong electorate?205

200. ALLIANCE FOR TRUE DEMOCRACY, Proposals for the 2017 CE ElectionPackage, http://www.atd.hk/en/?page_id=109 (last visited Sept. 27, 2013).201. Kelly Ip, Bid to Widen Role of Voters, STANDARD (H.K.), Jul. 11. 2013,

http://www.thestandard.com.hk/news_de-tail.asp?pp_cat=30&art_id=135417&sid=39938189&con_type=1. For an expla-nation of the current composition of the Election Committee, see infra PartII.D.202. Ip, supra note 201.203. Press Release, Scholarism, 729政改晚會聲明 [Declaration on the Politi-

cal Reform Gathering on the Evening of July 29] (Jul. 29, 2013), http://schol-arism.com/2013/07/31/729%e6%94%bf%e6%94%b9%e6%99%9a%e6%9c%83%e8%81%b2%e6%98%8e/.204. Press Release, Scholarism, 聲明：政改底線寸步不讓 [Declaration: We

Will Not Yield an Inch on the Bottom Line for Political Reform] (Jul. 31, 2013),http://schol-arism.com/2013/07/31/%e8%81%b2%e6%98%8e%ef%bc%9a%e6%94%bf%e6%94%b9%e5%ba%95%e7%b7%9a-%e5%af%b8%e6%ad%a5%e4%b8%8d%e8%ae%93/.205. Id.


The Beijing and Hong Kong Governments fulminated againstany suggestion that the public should be allowed to nominatecandidates. Zhang Xiaoming refused to attend a forum orga-nized by the Civic Party, curtly stating that Article 45 of theBasic Law only permitted nominations to be made by a Nomi-nating Committee.206 C.Y. Leung spoke out against civil nomi-nation, alleging that the Basic Law does not permit it. 207 Profes-sor Albert Chen has suggested that “nominations” by the publicbe treated as purely advisory.208 The Hong Kong electorate, itseemed, was free to suggest a name—but the Nominating Com-mittee was equally free to ignore it.209 Rao Geping went further,asserting that even “civil recommendation” was impermissi-ble.210

The debate regarding nomination suggests that the official po-sition from both Hong Kong and Beijing is that the Basic Lawmeans, “[W]hatever Beijing officials say it means, wheneverthey choose to say it.” 211 As a result, subsequent proposals forreform were clouded by defeatism. On January 8, 2014, the ATDproposed a “three-track” plan involving civil nomination, politi-

206. Tanna Chong, Civil Nomination Proposal Violates Basic Law, SaysZhang Xiaoming, S. CHINA MORNING POST (H.K.), Sept. 13, 2013,http://www.scmp.com/news/hong-kong/article/1308950/civil-nomination-pro-posal-violates-basic-law-says-zhang-xiaoming.207. See, e.g.,梁振英：政改要跟《基本法》學者：針對公民提名 [C.Y. Leung:

Political Reform Must Comply with Basic Law; Scholars: Remarks Targeted atCivil Nomination], MINGPAO (H.K.), Sept. 28, 2013.208. See Stuart Lau, Central Government Adviser on Hong Kong Rejects Civil

Nomination for 2017, S. CHINA MORNING POST (H.K.), Sept. 23, 2013,http://www.scmp.com/news/hong-kong/article/1315514/central-government-adviser-hong-kong-rejects-civil-nomination-2017.209. Suzanne Pepper, Exploring the Options: Civil Nomination, CHINA

ELECTIONS & GOVERNANCE BLOGS (Sept. 23, 2013, 7:32 AM), http://chinaelec-tionsblog.net/hkfocus/?p=644 [hereinafter Pepper, Exploring the Options].210. Kahon Chan, Civil Nomination Breaches Basic Law: Expert, CHINA

DAILY (Mar. 24, 2014, 8:33 AM), http://www.chinadailyasia.com/hknews/2014-03/24/content_15126545.html. Chief Secretary Carrie Lam described Rao’scomments as representing the “final word” on nomination. Kelly Ip, LamHedges Over Her “Final Word” Meaning, STANDARD (H.K.), Mar. 24, 2014,http://www.thestandard.com.hk/news_detail.asp?art_id=143753&con_type=1.211. Suzanne Pepper, New Year’s Day, 2014: A Wake-Up Call?, CHINA

ELECTIONS & GOVERNANCE BLOGS (Jan. 6, 2014, 8:08 AM), http://chinaelec-tionsblog.net/hkfocus/?p=713.


cal party nomination, and Nominating Committee nomina-tion. 212 However, the “three-track” plan would involve nochanges to the composition of the Nominating Committee com-pared to the composition of the current Election Committee.213

On March 20, 2014, think-tank Hong Kong 2020, headed by for-mer Chief Secretary Anson Chan (陳方安生), issued a proposalthat made no provision for nomination by the public or by polit-ical parties.214 The Hong Kong 2020 proposal altered the compo-sition of the Nominating Committee, but provided that the sup-port of 10 percent of nominators should be sufficient for candi-dacy.215 On April 2, eighteen academics proposed a “civil recom-mendation” system under which any person could become a can-didate for Chief Executive if they received the recommendationof 2–3 percent of the electorate, in addition to the support of oneeighth of the Nominating Committee.216 Ultimately, the “three-track” plan became one of three proposals listed on the OccupyCentral referendum ballot in June 2014; despite—or perhaps be-cause of—its relative lack of ambition, it was ultimately en-dorsed by a majority of voters participating in the referendum.217

Despite these apparent concessions from the democratic camp,the 2014 Decision showed no signs of reciprocation. The 2014Decision emphasized the Chief Executive’s responsibilities bothto the HKSAR and to the Central Government and declared thatthe requirement of “loving the country and loving Hong Kong”was a corollary of that dual mandate.218 It therefore declared

212. ALLIANCE FOR TRUE DEMOCRACY, Chief Executive Election Plan,http://www.atd.hk/en/?p=174 (last visited Jan. 20, 2014).213. Suzanne Pepper, Pan-Democrats Answer Back, CHINA ELECTIONS &

GOVERNANCE BLOGS (Jan. 13, 2014, 6:59 AM), http://chinaelec-tionsblog.net/hkfocus/?p=720. For an explanation of the current composition ofthe Election Committee, see infra Part II.D.214. See Press Release, Hong Kong 2020, Hong Kong 2020 Preliminary Pro-

posals on ‘Methods for Selecting the Chief Executive in 2017 and for Formingthe Legislative Council in 2016’ (Mar. 20, 2014),http://hongkong2020.files.wordpress.com/2014/03/hong-kong-2020-initial-re-sponse-with-annex.pdf;陳太普選方案無公民提名 [Anson Chan’s Universal Suf-frage Proposal Omits Civil Nomination], MINGPAO (H.K.), Mar. 21, 2014.215. Id.216. 18學者不違憲方案設公民推薦 [18 Scholars’ Constitutional Proposal Pro-

vides for Civil Recommendation], MINGPAO (H.K.), Apr. 3, 2014.217. See Press Release, Occupy Central with Love and Peace, supra note 179.218. See 2014 Decision, supra note 2.


that candidates (of which there would be between two and three)had to be selected by a Nominating Committee with the samecomposition as the existing Election Committee.219 Each candi-date would have to receive the support of at least half of themembers of the Nominating Committee.220 The practical effectof these requirements, taken in conjunction, would be to make it“effectively impossible” for any pro-democracy politician to standfor election. 221 The 2014 Decision came with an embeddedthreat: if electoral reforms could not be approved, the 2017 elec-tion would continue to use the same arrangements as the much-maligned 2012 election.222 The tough line from Beijing reflectedin the 2014 Decision not only frustrated Hong Kongers’ demo-cratic aspirations; it also made the explosion of public discontentin the Umbrella Movement inevitable.223

The Hong Kong Government has conducted a second round ofpublic consultations on electoral reform. However, it proceededon the basis of the much-maligned 2014 Decision.224 Despite ef-forts to salvage the 2014 Decision225–most notably by Albert

219. Id.220. Id.221. See, e.g., Shannon Tiezzi, China Drafts Rules for Hong Kong Elections,

DIPLOMAT, Aug, 29, 2014, http://thediplomat.com/2014/08/china-drafts-rules-for-hong-kong-elections/. This seems to have been the intended effect. SeeJames Pomfret, China Asserts Paternal Rights Over Hong Kong in DemocracyClash, REUTERS, Sept. 11, 2014, available at http://www.reuters.com/arti-cle/2014/09/11/us-china-hongkong-insight-idUSKBN0H600120140911 (citinganonymous sources stating that Zhang Xiaoming told Hong Kong democratsthat the fact that they were allowed to stay alive was abundant reflection ofChinese inclusiveness).222. See 2014 Decision, supra note 2.223. See Charles Mok, This Clash With Beijing’s Outmoded Thinking Was

Inevitable, N.Y. TIMES ROOM FOR DEBATE (Sept. 29, 2014, 12:57 PM),http://www.nytimes.com/roomfordebate/2014/09/29/is-autonomy-possible-for-hong-kong/this-clash-with-beijings-outmoded-thinking-was-inevitable (com-ments by a pan-democratic legislator).224. H.K. GOV’T, 2017 SEIZE THE OPPORTUNITY: METHOD FOR SELECTING THE

CHIEF EXECUTIVE BY UNIVERSAL SUFFRAGE CONSULTATION DOCUMENT, fore-word, ¶ 4, at v (2015). The paragraph gives an indication of the extent of gov-ernmental indifference to demands for democracy (“Regardless of which viewyou hold”); see also H.K. GOV’T, 2017 MAKE IT HAPPEN: METHOD FOR SELECTINGTHE CHIEF EXECUTIVE BY UNIVERSAL SUFFRAGE CONSULTATION REPORT ANDPROPOSALS (2015).225. See, e.g., Press Release, Hong Kong 2020, Hong Kong 2020 Proposal

(Mar. 4, 2015), http://hongkong2020.com/2015/03/04/press-release-04032015-


Chen226–pan-democrats have vowed to veto any proposal basedon the framework it prescribes. 227 Beijing’s response was tomake the pan-democrats an offer they could not refuse: if thereform was vetoed, Rao Geping declared, all future reformswould proceed on the basis of the 2014 Decision.228

II. APPLICABLE LAW

This Part shall discuss the legal underpinnings of the post-1997 Hong Kong legal order, before turning to the PRC’s attitudetoward treaties and the relevant provisions of the Joint Declara-tion, the Basic Law, and the ICCPR. It will then consider thepotential applicability of customary international law, insofar asit is reflected in the Universal Declaration of Human Rights(“UDHR”) and other indicia of customary international law.

A. The Contested Basis of Hong Kong’s New Legal OrderMainland Chinese commentators have emphasized that post-

1997 Hong Kong is a creature of the PRC Constitution. PekingUniversity’s Qiang Shigong (強世功) has asserted that the BasicLaw derives its normative nature from the PRC Constitution,

hongkong2020-proposal/ (expressing dismay at the 2014 Decision but statinga desire to continue participating in the consultation process).226. See, e.g., Stuart Lau, Basic Law Expert Albert Chen Tries to Steer Middle

Road on Reform for Hong Kong Chief Executive Election, S. CHINA MORNINGPOST (H.K.), Jan. 26, 2015, http://www.scmp.com/news/hong-kong/arti-cle/1691393/basic-law-expert-albert-chen-tries-steer-middle-road-reform-hong-kong; Albert Chen, “Pocket the Proposal First?” Folk Wisdom and theMentality of Hong Kong’s Pan-Democrats, HKU LEGAL SCHOLARSHIP BLOG(Mar. 3, 2015, 10:47 PM), http://researchblog.law.hku.hk/2015/03/albert-chen-pocket-proposal-first-folk.html.227. Jeffie Lam, Stuart Lau & Joyce Ng, Prospects for Political Reform in

Hong Kong Fade as Pan-Democrats Vow to Block Plan, S. CHINA MORNING POST(H.K.), Jan. 8, 2015, http://www.scmp.com/news/hong-kong/arti-cle/1676748/government-wants-political-reform-vetoed.228. 饒戈平﹕倘拉倒日後仍循8‧31 [Rao Geping: If Vetoed, Future Proposals

Will Follow August 31 Decision], MINGPAO (H.K.), Mar. 3, 2015,http://news.mingpao.com/pns/%E9%A5%92%E6%88%88%E5%B9%B3%EF%B9%95%E5%80%98%E6%8B%89%E5%80%92%20%E6%97%A5%E5%BE%8C%E4%BB%8D%E5%BE%AA8%E2%80%A731-%E3%80%8C%E4%BA%BA%E5%A4%A7%E6%A1%86%E6%9E%B6%E7%84%A1%E4%BF%AE%E6%94%B9%E5%8F%AF%E8%83%BD%E3%80%8D/web_tc/article/20150304/s00001/1425405749443.


not the Joint Declaration.229 Similarly, the White Paper devotesonly one paragraph to the Joint Declaration,230 referring to itmerely as “confirmation” of China’s resumption of sover-eignty.231

Such accounts of Hong Kong’s legal order, framed purely interms of Chinese domestic law, are misleading. The Preamble tothe Basic Law expressly states that it has been enacted “to en-sure the implementation of the basic policies of the [PRC] re-garding Hong Kong.” 232 The “basic policies” referred to in thePreamble could only be those referred to in the Joint Declara-tion; indeed, Article 3(12) of the Joint Declaration declares thatthe basic policies would be “stipulated” in the Basic Law.233 XiaoWeiyun (蕭蔚雲), a member of the Drafting Committee hailed asone of the “guardians” of the Basic Law,234 acknowledged thatthe Joint Declaration “has its legal status and effect” and that it“affirms the task to enshrine in law the principle of ‘one country,two systems.’”235

Nonetheless, even if one accepts that China intended to imple-ment the Joint Declaration through the Basic Law, it does notfollow that the Basic Law achieves that objective. This articleproceeds on the basis that the provisions of the Basic Law admitof an interpretation consistent with the Joint Declaration. How-ever, the compatibility of the Basic Law with the Joint Declara-tion—in particular, whether its provisions on “elections” are con-sistent with the Joint Declaration—remains an open question.236

229. Shigong Qiang, 國際人權公約在香港：被誤讀的國際條約 [The ICCPR inHong Kong: The Misinterpreted International Treaty], MINGPAO (H.K.), Aug.25, 2014.230. See White Paper, supra note 175.231. Hong Kong pro-democracy tabloid Apple Daily alleged that Qiang was

one of the co-authors of the White Paper. 撰文撐中央干預港事務強世功幕後黑手 [Qiang Shigong Mastermind of Articles Advocating Central Intervention inHong Kong Affairs], APPLE DAILY (H.K.), June 12, 2014.232. Basic Law, supra note 62, at Preamble.233. Joint Declaration, supra note 61, art. 3(12).234. See Jimmy Cheung, Basic Law ‘Guardian’ Dies at 78, S. CHINA MORNING

POST (H.K.), Jul. 16, 2004, http://www.scmp.com/article/463304/basic-law-guardian-dies-78.235. See XIAO WEIYUN, ONE COUNTRY, TWO SYSTEMS: AN ACCOUNT OF THE

DRAFTING OF THE HONG KONG BASIC LAW 13 (2001).236. Id. at 67–69; Boasberg, supra note 28.


B. The PRC’s Attitude Toward Treaties

1. The Vienna Convention on the Law of Treaties (“VCLT”)The PRC acceded to the VCLT on September 3, 1997.237 Xue

Hanqin (薛捍勤), writing in a personal capacity prior to her ap-pointment to the ICJ, suggested that, as a party to the VCLT,“China should comply with its treaty obligations in good faithand should not use its internal law as a justification for evadingits international obligations, as provided in Article 27 of the Con-vention.”238 Even prior to the PRC’s accession to the VCLT, itconsidered many of the VCLT’s provisions to reflect existingprinciples of customary international law.239

The VCLT, and the rules of customary international law it re-flects, are relevant to the observance and interpretation of trea-ties, including the Joint Declaration and the ICCPR. They arealso relevant to the validity of reservations to the ICCPR.

The rules governing the observance of treaties are uncontro-versial. The Article 26 rule of pacta sunt servanda (“agreementsmust be kept”) was well established by Ulpian’s time;240 its va-lidity has never been questioned by any international tribu-nal.241 Similarly, the rule in Article 27 that a party’s domesticlaw does not excuse its non-performance of a treaty reflects cus-tomary international law.242

The VCLT’s provisions regarding treaty interpretation andreservation are more problematic. Under Article 31(1), “[a]

237. Status of the Vienna Convention on the Law of Treaties, U.N. TREATYCOLLECTION, https://trea-ties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&chapter=23&Temp=mtdsg3&lang=en (last visited Dec. 30, 2013).238. Hanqin Xue & Qian Jin, International Treaties in the Chinese Domestic

Legal System, 8 CHINESE J. INT’L L. 299, 305 (2009).239. Jay R. Goldstein, Chinese and Western Treaty Practice: An Application

to the Joint Declaration Between the People’s Republic of China and Great Brit-ain Concerning the Question of Hong Kong, 1 AM. U. INT’L L. REV. 167, 177–78(1986). See also Panos Merkouris, Introduction: Interpretation Is a Science, Isan Art, Is a Science, in TREATY INTERPRETATION AND THE VIENNA CONVENTIONON THE LAW OF TREATIES 30 YEARS ON 1, at 9 (Malgosia Fitzmaurice et al. eds.,2010).240. MARK E. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON

THE LAW OF TREATIES 363 (2009).241. Id.242. Id. at 370.


treaty shall be interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treaty in theircontext and in light of its object and purpose.”243 Article 31(2)defines what the “context” of the treaty is for the purposes ofinterpretation. Article 31(3) provides that, in addition to the con-text, the following factors should be taken into account:

(a) any subsequent agreement between the parties re-garding the interpretation of the treaty or the applica-tion of its provisions;(b) any subsequent practice in the application of thetreaty which establishes the agreement of the partiesregarding its interpretation;(c) any relevant rules of international law applicable inthe relations between the parties.244

Article 31(3)(c) does not specify whether the “relevant rules”are the rules applicable at the time the treaty was entered intoor the rules applicable at the time of interpretation.245 Scholarlyopinion differs as to the question of intertemporality. JudgeMark Villiger, writing extrajudicially, suggests that the applica-ble rules are those in force at the time of interpretation.246 Suchan interpretation creates the possibility that customary rulesmay substantially modify treaty provisions over time.247 Profes-sors Ulf Linderfalk and Campbell McLachlan, however, suggestthat it is only appropriate to consider the rules in force at thetime of interpretation if the parties had so intended.248 ProfessorMcLachlan identifies three indicia of intent to adopt a term orconcept with an ambulatory meaning:

243. Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155U.N.T.S. 331 [hereinafter VCLT].244. Id. art. 31(2), (3).245. Campbell McLachlan, The Principle of Systemic Integration and Article

31(3)(C) of the Vienna Convention, 54 INT’L & COMP. L.Q. 279, 290–91 (2008).246. VILLIGER, supra note 240, at 433.247. Id.248. McLachlan, supra note 245, at 316–18; ULF LINDERFALK, ON THE

INTERPRETATION OF TREATIES: THE MODERN INTERNATIONAL LAW AS EXPRESSEDIN THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 182 (2007).


(1) Use of a term which carries an evolving meaning asa matter of general international law, without adoptinga specific definition;(2) Entry into a treaty which commits the parties to aprogram of progressive development; and(3) Description of obligations in general terms, whichmust be read in light of changing circumstances.249

Article 32 permits the use of supplementary means of inter-pretation, including the travaux préparatoires (preparatoryworks) and the circumstances of its conclusion, to confirm an in-terpretation made under Article 31 or to determine the meaningwhen an interpretation under Article 31 is ambiguous, obscure,or leads to a “manifestly absurd or unreasonable” result.250

Article 19 permits reservations to treaties unless the reserva-tion is prohibited by the treaty, the reservation falls outside aclosed list of reservations enumerated in the treaty, or the res-ervation is otherwise incompatible with the object and purposeof the treaty.251 However, Article 19 does not state the legal con-sequences of a legally impermissible reservation. The Interna-tional Law Commission suggests that such a reservation may beseverable if the reserving State intended to be bound by thetreaty without the benefit of the reservation.252

2. Customary International LawEven prior to the PRC’s accession to the VCLT, it considered

the VCLT’s provisions—in particular, the provisions governingtreaty interpretation and termination—to be binding, insofar asthey reflect customary international law.253

249. McLachlan, supra note 245, at 317–18.250. VCLT, supra note 243, art. 32.251. Id. art. 19.252. Rep. of the Int’l Law Comm’n, 63rd Sess., Apr. 26–June 3, July 4–Aug.

12, 2011, ¶ 4.5.3, U.N. Doc. A/66/10/Add.1; GAOR, 66th Sess., Supp. No. 10(2011) [hereinafter ILC Guide to Practice]. See also Edward T. Swaine, TreatyReservations, in THE OXFORD GUIDE TO TREATIES 293–98 (Duncan B. Hollis ed.,2012).253. Goldstein, supra note 239, at 177–78.


Articles 26 and 27 of the VCLT codify pre-existing rules of cus-tomary law on the duty to observe treaties.254 The position re-garding Articles 31 and 32 is less certain. The existence of anycustomary rules regarding treaty interpretation prior to theVCLT is questionable.255 However, it is at least arguable thatArticles 31 and 32 now reflect emerging customary law.256 Simi-larly, it appears that the VCLT’s provisions on reservations (in-cluding Article 19) may not have reflected pre-existing custom-ary law, but have given rise to a new customary norm.257

C. The Joint DeclarationThe PRC’s “basic policies” toward Hong Kong are set out in

Article 3 of the Joint Declaration, with further elaboration inAnnex I.258 These basic policies include the following:

(1) Hong Kong would enjoy “a high degree of autonomy,except in foreign and [defense] affairs”;(2) The Central Government would appoint the ChiefExecutive based on the results of elections or consulta-tions;(3) “Rights and freedoms, including those of the person,of speech, of the press, of assembly, of association, oftravel, of movement, of correspondence, of strike, ofchoice of occupation, of academic research and of reli-gious belief will be ensured by law in the Hong KongSpecial Administrative Region;” and(4) The basic policies would be set out in the Basic Lawand would remain unchanged for 50 years after the cre-ation of the Hong Kong SAR.

Section I of Annex I explained the means by which the ChiefExecutive and legislature would be chosen:

The government and legislature of the Hong Kong Special Ad-ministrative Region shall be composed of local inhabitants. The

254. VILLIGER, supra note 240, at 363, 370.255. Id. at 439–40, 448.256. Id.257. Id. at 324–25. See also Thomas Giegerich, Treaties, Multilateral, Reser-

vations to, MAX PLANCK ENCYCLOPEDIA OF PUB. INT’L LAW, http://opil.ou-plaw.com/home/EPIL (enter title as search term) (last visited Jan. 6, 2014), ¶7.258. Joint Declaration, supra note 61, art. 3 & Annex I.


chief executive of the Hong Kong Special Administrative Re-gion shall be selected by election or through consultations heldlocally and be appointed by the Central People’s Government.Principal officials (equivalent to Secretaries) shall be nomi-nated by the chief executive of the Hong Kong Special Admin-istrative Region and appointed by the Central People’s Govern-ment. The legislature of the Hong Kong Special AdministrativeRegion shall be constituted by elections. The executive author-ities shall abide by the law and shall be accountable to the leg-islature.259

Article 8 of the Joint Declaration provided that the provisionsof the Joint Declaration and of its annexes “shall be equally bind-ing.”260

On its face, the Joint Declaration merely requires selection ofthe Chief Executive by one of two means: election or consulta-tion. It imposes no specific requirements regarding the electionor consultation process.261 However, in promulgating the BasicLaw, Beijing has elected to select the Chief Executive using an“election” process—albeit (from the perspective of advocates ofdemocratization) a fundamentally flawed one.

D. The Basic LawThe Basic Law is not a treaty. However, it is partly a creature

of the Joint Declaration.262 The drafting process was fraughtwith tensions between liberal and conservative Drafting Com-mittee members;263 after 1989, Beijing threw its weight behindthe conservative faction. The structure of Legco from 1997 to2007 reflected the extent of the conservative victory. During thatperiod, half of its members were selected through functional con-stituencies,264 cementing the influence of business and profes-sional interests.265 During the same 10-year period, the number

259. Id. Annex I, ch. I.260. Id. art. 8. See also XIAO, supra note 235, at 13.261. See, e.g., C.Y. Leung, Hong Kong Must Seize the First Chance to Elect Its

Own Leaders, FINANCIAL TIMES, Sept. 8, 2014,http://www.ft.com/intl/cms/s/0/22864004-34ee-11e4-aa47-00144feabdc0.html.262. See XIAO, supra note 235, at 13.263. See supra Part I.C.264. Boasberg, supra note 28, at 331–32; GHAI, supra note 31, at 259–60.265. Boasberg, supra note 28, at 332; GHAI, supra note 31, at 260–61.


of directly elected members increased from twenty to thirty overthe course of three electoral terms.266

Nonetheless, Article 68(2) of the Basic Law declared:The method for forming the Legislative Council shall be speci-fied in the light of the actual situation in the Hong Kong Spe-cial Administrative Region and in accordance with the princi-ple of gradual and orderly progress. The ultimate aim is theelection of all the members of the Legislative Council by uni-versal suffrage.267

Annex II to the Basic Law provides that amendments to thecomposition of Legco can only be made after 2007. Provided“there is a need” for such amendment:

[S]uch amendments must be made with the endorsement of atwo-thirds majority of all the members of the Council and theconsent of the Chief Executive, and they shall be reported tothe Standing Committee of the National People’s Congress forthe record.268 (Emphasis added)

The selection of the Chief Executive was a similar combinationof the reactionary with the aspirational. To select the first ChiefExecutive, the NPC would appoint a Preparatory Committee,which would in turn appoint a Selection Committee, whichwould in turn recommend a candidate.269 Subsequent Chief Ex-ecutives would be chosen by an 800-member Election Committeefrom a list of candidates, each nominated by at least one hundredelectors.270 The Central Government would appoint members ofthe Election Committee from four interest groups (selecting 200members from each group):

(1) The industrial, commercial and financial sectors;(2) The professions;

266. Basic Law, supra note 62, Annex II; Decision of the National People’sCongress on the Method for the Formation of the First Government and theFirst Legislative Council of the Hong Kong Special Administrative Region(adopted by the Standing Comm. Nat’l People’s Cong., Apr. 4, 1990),http://www.legislation.gov.hk/blis_ind.nsf/curalleng-doc/8E4706E4D2D578D7482575EE000E4FB6?OpenDocument (China).267. Basic Law, supra note 62, art. 68(2).268. Id. Annex II.269. Boasberg, supra note 28, at 334–35; GHAI, supra note 31, at 258.270. GHAI, supra note 31, at 258–59.


(3) Labour, social services, religious and other sectors;and(4) Members of the Legislative Council, representativesof district-based organizations, Hong Kong deputies tothe National People’s Congress, and representatives ofHong Kong members of the National Committee of theChinese People’s Political Consultative Conference.271

Article 45(2) of the Basic Law provides that the “ultimate aim”is for the Chief Executive to be selected “by universal suffrageupon nomination by a broadly representative nominating com-mittee in accordance with democratic procedures.”272

Annex I to the Basic Law governs amendments to the selectionmethod of the Chief Executive after 2007. If “there is a need” foramendment:

[S]uch amendments must be made with the endorsement of atwo-thirds majority of all the members of the Legislative Coun-cil and the consent of the Chief Executive, and they shall bereported to the Standing Committee of the National People’sCongress for approval. 273 (Emphasis added)

Neither Article 45 nor Article 68 set a deadline for democrati-zation. The only apparent stipulation is that no changes maytake place before 2007.274

Despite its promises of universal suffrage for the Chief Execu-tive and Legco elections, the Basic Law provides a multitude ofmethods for Beijing to block democratization in Hong Kong.Legco electoral methods must comply with “the actual situation”in Hong Kong and “the principle of gradual and orderly pro-gress.”275 Yet the Basic Law offers no guidance on who deter-mines the “actual situation” in Hong Kong or what criteria arerelevant to that determination. Similarly, the Basic Law doesnot define what “broadly representative” means in the context ofnominations of candidates for Chief Executive. Nor does it statewho determines whether there is a “need” for amendment. Per-haps most damningly, the Basic Law does not prescribe any

271. Basic Law, supra note 62, Annex I.272. Id. art. 45(2).273. Id. Annex I.274. Id. Annexes I and II.275. Id. art. 68(2). The language of “gradual and orderly progress” also ap-

pears in art. 45(2), governing Chief Executive electoral reform.


timeline for democratization—except that no changes may takeplace before 2007.276 The power to determine the “actual situa-tion” in Hong Kong or the “need” to amend the electoral processwould amount to a power of veto over democratic development.A particularly obstructive NPCSC might determine that the “ac-tual situation” in Hong Kong demanded political stagnation un-til 2047, when the PRC’s basic policies toward Hong Kong expire.Alternatively, the NPCSC could dictate terms of reform incon-sistent with internationally accepted conceptions of democracy.The NPCSC could interpret “broadly representative” to permitexclusion of discrete minorities from the Nominating Commit-tee. The reference to “democratic procedures” suggests a partic-ularly thin conception of democracy in the nominating process,without regard to substantive rights associated with democracy.

E. The ICCPRThe last paragraph of Chapter XIII of Annex I in the Joint Dec-

laration and Article 39 of the Basic Law both provide that theprovisions of the ICCPR, “as applied to Hong Kong,” will remainin force after 1997.277 These provisions include Article 40, whichimposes the obligation to submit reports to the Human RightsCommittee.278

When the United Kingdom ratified the ICCPR in 1976, it en-tered (inter alia) the following reservation in respect of HongKong:

The Government of the United Kingdom reserve the right notto apply sub-paragraph (b) of article 25 in so far as it may re-quire the establishment of an elected Executive or LegislativeCouncil in Hong Kong.279

Article 25(b) of the ICCPR provides that every citizen shallhave the right “[t]o vote and to be elected at genuine periodic

276. Id. Annexes I and II.277. Joint Declaration, supra note 61, Annex I, ch. XIII; Basic Law, supra

note 62, art. 39.278. International Covenant on Civil and Political Rights art. 40, Dec. 16,

1966, 999 U.N.T.S. 171 [hereinafter ICCPR].279. Status of the International Covenant on Civil and Political Rights, U.N.

TREATY COLLECTION, http://trea-ties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-4&chapter=4&lang=en%23EndDec#EndDec (last visited Dec. 30, 2013).


elections which shall be by universal and equal suffrage . . . guar-anteeing the free expression of the will of the electors.”280 Sucha right shall not be subject to distinctions of, inter alia, politicalopinion, nor shall it be subject to unreasonable restrictions.281

1. Interpreting the ICCPRScholars have debated whether normal rules of treaty inter-

pretation apply to the interpretation of the ICCPR. Dr. BaşakÇali has argued that the interpretation of human rights treatiesinvolves a specialized application of the VCLT, rather than a dis-tinct set of interpretive principles.282 In Dr. Çali’s account, thestarting point in interpreting human rights treaties is the prin-ciple of effectiveness.283 As a corollary of the good faith require-ment of Article 31 of the VCLT, the proper interpretation of hu-man rights treaty provisions is an interpretation that makestheir provisions “effective, real, and practical.”284 The effective-ness principle has two aspects. First, provisions should be inter-preted in a manner that confers effective, rather than formal,rights.285 Second, interpreters should adopt a teleological ap-proach and ask what circumstances allow other concerns totrump human rights treaty provisions.286 As a result of the effec-tiveness principle, interpreters have favored dynamic interpre-tation over original intent in interpreting human rights instru-ments.287

A further corollary of Article 31 of the VCLT in the humanrights treaty context is the principle of coherence. Interpretersof human rights treaties typically interpret treaties in light ofgeneral international law and other treaties and instruments.288

280. ICCPR, supra note 278, art. 25(b).281. Id. art. 2 & art. 25(b).282. Başak Çali, Specialized Rules of Treaty Interpretation: Human Rights,

in THE OXFORD GUIDE TO TREATIES 525, 533–37 (Duncan B. Hollis ed., 2012).283. Id. at 538.284. Id.285. Id. at 539.286. Id.287. See Id. at 547.288. Id. at 541–42.


Other rules of international law may be excluded, deemed to dis-place human rights treaty interpretation, or accommodated inthe interpretation of human rights treaties.289

Reservations to human rights treaties raise further questions.In General Comment 24, the Human Rights Committee consid-ered that, in general, incompatible reservations may be severedfrom the ICCPR.290 However, General Comment 24 drew strongcriticism from, inter alia, the United Kingdom.291 The Interna-tional Law Commission has rejected the idea that a special re-gime applies to reservations to human rights treaties;292 in itsGuide to Practice, it espouses a more generalized approach toseverability, under which severability depends on whether thereserving State intended to be bound without the benefit of thereservation.293

2. Status of the Reservation to Article 25(b)When the United Kingdom ratified the ICCPR on behalf of

Hong Kong in 1976, it entered a reservation in respect of Article25(b), insofar as Article 25(b) required the establishment of anelected Executive or Legco in Hong Kong. Opponents of democ-ratization have cited the reservation as evidence that Article25(b) does not apply to Hong Kong at all. In its submissions tothe Human Rights Committee, the SAR Government—and,prior to 1997, the U.K. Government—maintained that the reser-vation continues to apply.294 BLC members Maria Tam and Rao

289. Id. at 541–45.290. Human Rights Comm., Gen. Comment No. 24: Issues Relating to Reser-

vations Made Upon Ratification or Accession to the Covenant or the OptionalProtocols Thereto, or in Relation to Declarations Under Article 41 of the Cove-nant, ¶ 18, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (Nov. 4, 1994). See also Swaine,supra note 252, at 295–96; Çali, supra note 282, at 533–37; and JOSEPH &CASTAN, supra note 23, at 886–87.291. Çali, supra note 282, at 536. See also JOSEPH & CASTAN, supra note 23,

at 886.292. Swaine, supra note 252, at 298.293. ILC Guide to Practice, supra note 252, ¶ 4.5.3; see also Swaine, supra

note 252, at 296–98.294. U.K. GOV’T, SUPPLEMENTARY REPORT BY THE UNITED KINGDOM OF GREAT

BRITAIN AND NORTHERN IRELAND IN RESPECT OF HONG KONG UNDER THEINTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ¶ 35 (1996) [herein-after 1996 SUPPLEMENTARY SUBMISSIONS]; H.K. GOV’T, REPORT OF THE HONGKONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA IN


Geping have argued that Article 25(b) does not apply to HongKong,295 as has Qiang Shigong.296

The Human Rights Committee, however, contends that thereservation no longer applies. In considering the existence offunctional constituency seats in Legco, the Committee concludedthat, once an elected legislature was established, its electionmust conform to the requirements of Article 25(b):

The Committee is aware of the reservation made by the UnitedKingdom that article 25 does not require establishment of anelected Executive or Legislative Council. It however takes theview that once an elected Legislative Council is established, itselection must conform to article 25 of the Covenant. The Com-mittee considers that the electoral system in Hong Kong doesnot meet the requirements of article 25, as well as articles 2, 3and 26 of the Covenant.297

Successive Hong Kong Governments, both before and after1997, have given four responses to the Human Rights Commit-

THE LIGHT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ¶461 (1999) [hereinafter 1999 SUBMISSIONS]; H.K. GOV’T, FIRST REPORT OF THEHKSAR OF THE PRC IN THE LIGHT OF THE ICCPR: SUPPLEMENTARY INFORMATION¶ 169 (1999) [hereinafter 1999 SUPPLEMENTARY SUBMISSIONS],; H.K. GOV’T,SECOND PERIODIC REPORT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGIONOF THE PEOPLE’S REPUBLIC OF CHINA IN THE LIGHT OF THE INTERNATIONALCOVENANT ON CIVIL AND POLITICAL RIGHTS: GOVERNMENT OF THE HONG KONGSPECIAL ADMINISTRATIVE REGION’S RESPONSE TO THE LIST OF ISSUES PRESENTEDBY THE HUMAN RIGHTS COMMITTEE ON 7 NOVEMBER 2005 (CCPR/C/HKG/Q/2) ¶1.11 (2005) [hereinafter 2005 SUBMISSIONS]; H.K. Gov’t, THIRD PERIODICREPORT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’SREPUBLIC OF CHINA IN THE LIGHT OF THE INTERNATIONAL COVENANT ON CIVIL ANDPOLITICAL RIGHTS ¶¶ 315–23 (2013) [hereinafter 2013 SUBMISSIONS].295. Tony Cheung & Emily Tsang, Query on Need to Meet World Standards,

S. CHINA MORNING POST (H.K.), Jul. 11, 2013; Stuart Lau & Colleen Lee, BasicLaw Expert Accused of Twisting Facts on Voting Rights, S. CHINA MORNINGPOST (H.K.), Apr. 1, 2013, http://www.scmp.com/news/hong-kong/arti-cle/1204187/basic-law-expert-accused-twisting-facts-voting-rights. But seeGeping Rao, The Application of the International Covenant on Civil and Polit-ical Rights to Hong Kong, 2 PAC. RIM. L. & POL’Y J. 9, 13 (1993) (stating withoutexplanation that developments in Hong Kong put the continued necessity ofthe reservation in question).296. Shigong Qiang, The ICCPR in Hong Kong: The Misinterpreted Interna-

tional Treaty, supra note 229.297. 1995 CONCLUDING OBSERVATIONS, supra note 23, ¶ 19.


tee. First, the Human Rights Committee overlooked the reserva-tion to Article 25(b).298 Second, the system of functional constit-uencies did not give rise to any incompatibility with any of theprovisions of the ICCPR as applied to Hong Kong.299 Third, func-tional constituencies served a historical function in providingrepresentation to Hong Kong’s economic and professional sectorsto reflect their importance in the community.300 Fourth, func-tional constituencies are a transitional measure in the pursuitof the ultimate aim of universal suffrage.301

However, none of these arguments withstands scrutiny. Thefirst and second arguments amount to the assertion that Article25(b) never applied to Hong Kong. Such an assertion begs thequestion of the continued relevance of the reservation to Article25(b).302 The third and fourth arguments presuppose that Article25(b) applies to Hong Kong, but that there is no breach of theobligations contained therein.303 The 1995 iteration of the Hu-man Rights Committee rejected that premise. It found that func-tional constituencies gave “undue weight to the views of thebusiness community” and therefore, contravened the equal suf-frage requirement of Article 25.304

It is not entirely clear how the Human Rights Committeereached its conclusion that, once a legislature is constituted byelections, its election must comply with the requirements of Ar-ticle 25(b).305 Nonetheless, the Human Rights Committee’s con-clusion may be supported by interpreting the ICCPR in light ofcustomary international law, under Article 31(3)(c) of the VCLT.

Article 40 of the ICCPR imposes a reporting obligation, underwhich state parties must regularly submit reports on, inter alia,

298. 1999 SUBMISSIONS, supra note 294, ¶ 461; Seren S.T. Tang, Status of theReservation to the Right to Vote in Hong Kong 5 (H.K. Univ. Ctr. Comp. &Pub. L., Occasional Paper No. 17, 2008).299. Id.300. 1996 SUPPLEMENTARY SUBMISSIONS, supra note 294, ¶ 34; 1999

SUBMISSIONS, supra note 294, ¶ 461(b); Tang, supra note 298, at 5.301. Tang, supra note 298, at 5.302. Id.303. Id. at 5–6.304. 1995 CONCLUDING OBSERVATIONS, supra note 23, ¶ 19; JOSEPH & CASTAN,

supra note 23, at 742. For the views taken by subsequent iterations of the Com-mittee, see infra.305. Tang, supra note 298, at 5.


the “progress made” in the enjoyment of ICCPR rights.306 It im-poses ongoing duties on parties to ensure that all individualssubject to their respective jurisdictions enjoy ICCPR rights.307

Hence, insofar as it is necessary to consider customary interna-tional law in interpreting the ICCPR, current customary law re-garding democracy and democratization is relevant to the inter-pretation of Article 25(b).308 If there were indeed a right to de-mocratization as a matter of customary international law, Arti-cle 25(b) would require a party that has embarked on a processof democratization to continue with that process. Read in such alight, once the United Kingdom introduced elected seats toLegco, its reservation to Article 25(b) could no longer be con-sistent with the object and purpose of Article 25(b).

The invalidity of the reservation to Article 25(b) would likelyonly result in severance of the invalid reservation. The JointDeclaration and Basic Law both provide that the provisions ofthe ICCPR previously in force in relation to Hong Kong shallcontinue to apply.309 This is inconsistent with the suggestionthat invalidity of the reservation to Article 25(b) would nullifyall of the provisions of the ICCPR, as applied to Hong Kong.Thus, in the absence of evidence that the reservation was a fun-damental condition of the United Kingdom’s assent to theICCPR, Article 25(b) applies in full force to Hong Kong, alongwith other provisions of the ICCPR.310 The PRC would thereforebe obliged to secure the rights guaranteed by Article 25(b) in re-spect of Hong Kong, including the right of universal suffrage andthe right to be elected. Any conditions imposed on the exercise

306. ICCPR, supra note 278, art. 40(1).307. ICCPR, supra note 278, art. 2(1); Human Rights Comm., Gen. Comment

No. 3: Implementation at the National Level, Compilation of General Com-ments and General Recommendations Adopted by Human Rights Treaty Bod-ies, ¶ 1, U.N. Doc. HRI/GEN/1/Rev.1 (July 29, 1994).308. On the applicable customary international law, see infra Part II,G.309. Joint Declaration, supra note 61, Annex I, ch. XIII; Basic Law, supra

note 62, art. 39.310. ILC Guide to Practice, supra note 252, ¶ 4.5.3.


of these rights must be based on “reasonable and objective crite-ria.”311 In particular, political or other views are an impermissi-ble reason for restricting these rights.312 The application of Arti-cle 25(b) to Hong Kong would therefore be fatal to the notion thatcandidates for Chief Executive should be “screened” for ideolog-ical purity.

Nonetheless, despite its previous position regarding the inap-plicability of the reservation to Article 25(b), the Human RightsCommittee now appears to accept that the reservation remainsin place. The Concluding Observations issued in 2013 expressed“concern” about the continuation of the reservation and recom-mended that the Hong Kong Government “consider steps lead-ing to withdrawing the reservation to article 25(b) of the Cove-nant.”313 This represents a marked—and unexplained—depar-ture from previous Concluding Observations by the Committee,which maintained that the reservation no longer applied.314 TheHuman Rights Committee returned to the issue of voting rightsin Hong Kong on October 23, 2014, in light of the 2014 Deci-sion. 315 Although the Committee demanded information onmeasures taken to withdraw the reservation to article 25(b), itdeclared that “universal suffrage” included both the right to vote

311. Human Rights Comm., Gen. Comment No. 25: Article 25 (Participationin Public Affairs and the Right to Vote): The Right to Participate in PublicAffairs, Voting Rights and the Right of Equal Access to Public Service, ¶¶ 4,15, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (July 16, 1996) [hereinafter Gen. Com-ment 25].312. Id. ¶ 15; ICCPR, supra note 278, art. 2.313. Human Rights Comm., Concluding Observations on the Third Periodic

Report of Hong Kong, China, 107th Sess., Mar. 11–28, 2013, ¶ 6, U.N. Doc.CCPR C/CHN-HKG/CO/3 (Apr. 29, 2013) [hereinafter 2013 Concluding Obser-vations].314. See, e.g., Human Rights Comm., Consideration of Reports Submitted by

States Parties under Article 40 of the Covenant: Concluding Observations ofthe Human Rights Committee: Hong Kong Special Administrative Region(HKSAR), ¶ 18, U.N. Doc. CCPR/C/HKG/CO/2 (2006) [hereinafter 2006 Con-cluding Observations]. The 2013 Concluding Observations made no referenceto the 1999 Concluding Observations. 2013 Concluding Observations, supranote 313, ¶ 6.315. UN Human Rights Body to Take Up Hong Kong Voting Rights Issue at

Public Session, STRAITS TIMES, Sept. 10, 2014, http://www.strait-stimes.com/news/asia/east-asia/story/un-human-rights-body-take-hong-kong-voting-rights-issue-public-session-201.


and the right to stand for election.316 It therefore sought furtherinformation on the proposed Chief Executive electoral reformsand their compatibility with the ICCPR.317

3. Universal Suffrage and the Right to VoteThe Human Rights Committee considers that the right to vote

“should be available to every adult citizen.”318 Thus, states par-ties are required to “ensure that the broadest pool of voters beallowed to cast ballots.”319 The exercise of such rights may onlybe suspended or excluded as prescribed by law and on objectiveand reasonable grounds.320 The ICCPR does not impose any par-ticular electoral system.321 However, it does not follow that thereare no “international standards” at all (as Li Fei asserted in an-nouncing the 2014 Decision).322

The Election Committee in its present form does not complywith the requirement of universal suffrage under Article 25. Noris the selection of members of the Election Committee open to allregistered voters in Hong Kong.323 However, the main contro-versy regarding Chief Executive electoral reform has been thatof nomination, rather than the actual process of choosing be-tween candidates. General Comment 25 does not prescribe anyparticular nomination mechanism or process; it merely requiresthat nomination criteria not constitute an unreasonable barrierto entry.324

316. See Human Rights Comm., Report on Follow-Up to the Concluding Ob-servations of the Human Rights Committee, U.N. Doc. CCPR/C/112/2 (2014),at p. 22.317. Id.318. Gen. Comment 25, supra note 311, ¶ 4.319. Avery Davis-Roberts & David J. Carroll, Using International Law to As-

sess Elections, 17 DEMOCRATIZATION 416, 423 (2010).320. Gen. Comment 25, supra note 311, ¶ 4.321. Gen. Comment 25, supra note 311, ¶ 21.322. See, e.g., Li Fei: NPCSC’s Important Decision on HK, RADIO TELEVISION

H.K., Aug. 31, 2014, http://rthk.hk/rthk/news/english-news/20140831/news_20140831_56_1033905.htm.323. Chief Executive Election Ordinance (2001) Cap. 569, 19–27, pt. 2 (H.K.).324. See infra Part II.E.5.


4. Equal SuffrageThe ICCPR does not prescribe any particular electoral sys-

tem.325 However, any such system must “give effect to the freeexpression of the will of the electors.”326 Thus, although electoralsystems such as electoral college systems are permissible, thefunctional constituency system is not. 327 The Human RightsCommittee found that functional constituencies gave “undueweight to the views of the business community” and therefore,contravened the equal suffrage requirement of Article 25.328

The Election Committee’s composition is, in essence, the func-tional constituency system writ large. It privileges the views ofsocial sectors “deemed to be friendly to Beijing,” such as the com-mercial and agricultural sectors, at the expense of sectors con-sidered politically hostile.329 Any retention of the Election Com-mittee as an electoral body will therefore violate Article 25.

5. The Right to Be ElectedAlthough General Comment 25 does not prescribe a specific

nomination mechanism or process, it does not follow that it issilent on issues relating to nomination.330 In paragraphs 15–17of General Comment 25, the Human Rights Committee empha-sized that limits on the right to stand for election can only be

325. See Gen. Comment 25, supra note 311, ¶ 21.326. Id.327. JOSEPH & CASTAN, supra note 23, at 742.328. Id.329. Keith Bradsher, Beijing Switches Sides in the Race for Hong Kong’s

Chief Executive, N.Y. TIMES, Mar. 21, 2012, http://www.ny-times.com/2012/03/22/world/asia/beijing-switches-support-in-race-for-hong-kong-chief.html; Te-Ping Chen, Meet Hong Kong’s Voters—All 1,200 of Them,CHINA REAL TIME (Mar. 19, 2012, 10:22 PM), http://blogs.wsj.com/china-realtime/2012/03/19/meet-hong-kong%E2%80%99s-voters-all-1200-of-them/.As of 2012, members of the Election Committee included 241 members of pro-Beijing political parties, Hong Kong deputies to the National People’s Con-gress, Hong Kong members of the National Committee of the Chinese People’sPolitical Consultative Conference, and members of the New Territories HeungYee Kuk (representing the interests of indigenous villagers in the New Terri-tories). Id.330. Qiang Shigong has asserted that the ICCPR is silent on issues of nomi-

nation, but without apparent reference to General Comment 25. See ShigongQiang, The ICCPR in Hong Kong: The Misinterpreted International Treaty, su-pra note 229.


based on “objective and reasonable criteria.” In particular, itstated that political affiliation was not a permissible ground forbarring a person from standing for election. Nor may states re-quire candidates to be members of parties or of specific par-ties.331

The Human Rights Committee considered discrimination onthe ground of political opinion in Bwalya v. Zambia (314/1988).Bwalya, a Zambian national, ran for a parliamentary seat as amember of an opposition party. The Zambian authorities sub-jected him to threats and intimidation, expelled him and hisfamily from their home, and detained him for belonging to a po-litical party banned under Zambia’s one-party Constitution. TheHuman Rights Committee found that Zambia had violated Arti-cle 25.332 More recently, in a series of cases concerning Belarus’system of registering electoral candidates, the Committee heldthat arbitrary denial of registration, and denial of registrationto candidates whose registrations appeared to be lawful, violatedArticle 25.333

However, even the Human Rights Committee has recognizedthat some political affiliations are beyond the pale; it has takenthe view that Article 25 permitted a ban on far-right parties. Itjustified such a ban by invoking Article 5(1), under which groupsaiming to undermine or destroy the ICCPR rights of others can-not avail themselves of the ICCPR.334 The exception to the prin-ciple that candidacy cannot be refused on grounds of political af-filiation is therefore a narrow one. Any attempt by the PRC toexclude pro-democracy politicians from candidacy for Chief Ex-ecutive would not fall within the exception.335

331. Gen. Comment 25, supra note 311, ¶¶ 15–17.332. Chiiko Bwalya v. Zambia, ¶¶ 6.6 & 7, U.N. Doc. CCPR/C/48/D/314/1988

(1993); JOSEPH & CASTAN, supra note 23, at 745.333. See Lukyanchik v. Belarus, ¶ 8, U.N. Doc. CCPR/C/97/D/1392/2005

(2009); Sudalenko v. Belarus, ¶ 6.7, U.N. Doc. CCP R/C/100/D/1354/2005(2010) respectively. See also JOSEPH & CASTAN, supra note 23, at 745–46. De-nial of registration meant that a person could not legally become a candidate.Id.334. JOSEPH & CASTAN, supra note 23, at 746.335. But not for want of trying. See Chen Zuoer: Will Not Befriend “Traitors,

Separatists”, supra note 4 (comparing democrats to “terrorists”).


F. The Right to Self-DeterminationAcademic and lay observers have at various times suggested

that the right to self-determination applies to Hong Kong.336 Thecircumstances of Hong Kong’s removal from the list of Non-SelfGoverning Territories in 1972 suggest two possible explana-tions. The first is that the right of the Hong Kong people to self-determination was violated by the PRC, with the connivance ofthe United Kingdom.337 The second is that the lease of the NewTerritories, coupled with the largely ethnic Chinese populationof the territory, warrant the setting aside of self-determina-tion.338 Regardless of which view is correct, the issue of self-de-termination for Hong Kong—at least insofar as it encompassesexternal self-determination—is now politically unfeasible.339

G. A Right to Democracy in Customary International Law?In the event that ICCPR Article 25(b) does not apply to Hong

Kong, it falls to consider the extent to which customary interna-tional law protects a right to democratic participation. Neitherthe UDHR, nor any other evidence of customary internationallaw, provides a strong foundation for any obligation by the PRCto democratize Hong Kong. Nineteen years after ProfessorThomas Franck referred to an “emerging right to democratic

336. See generally Patricia A. Dagati, Hong Kong’s Lost Right to Self-Deter-mination: A Denial of Due Process in the United Nations, 13 N.Y.L. SCH. J. INT’L& COMP. L. 153 (1992); John W. Head, Selling Hong Kong to China: What Hap-pened to the Right of Self-Determination, 46 U. KAN. L. REV. 283 (1997); Wil-liam Pfaff, Why Not Support Self-Determination For Hong Kong?, CHI. TRIB.,Feb. 2, 1990, http://articles.chicagotribune.com/1990-02-02/news/9001090967_1_hong-kong-tiananmen-square-china.337. See Dagati, supra note 336, at 154–55; Head, supra note 336, at 298–

304.338. ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL

REAPPRAISAL 79–80 (1995) [hereinafter CASSESE, SELF-DETERMINATION]. De-spite widespread disillusion with the Central Government in Hong Kong afterthe Tiananmen Square Massacre of 1989, the ascent of assertive nativism inHong Kong did not begin until well after 1997. See Veg, supra note 83.339. Head, supra note 336, at 304. See generally Robert W. McGee & Danny

Kin-Kong Lam, Hong Kong’s Option to Secede, 33 HARV. INT’L L.J. 427 (1992).Nonetheless, there has been a revival of academic and popular discussion ofwhether Hong Kongers are a “people” entitled to self-determination. See, e.g.,Cheung Sze-tsai, 香港是否應有民族自決的權利? [Should Hong Kong Have theRight to Self-Determination?], UNDERGRAD (H.K.), Feb. 2014.


governance,”340 the right has not yet become consolidated as anorm of customary international law.341 Even if such a norm hascome into being, the PRC would be considered a persistent ob-jector.342

Under Article 21(3) of the UDHR, “[t]he will of the people shallbe the basis of the authority of government,” as expressed in “pe-riodic and genuine elections which shall be by universal andequal suffrage.” 343 When the UDHR was first drafted andadopted, it was treated as a non-binding instrument. 344 Alt-hough many of its norms are now considered binding as a matterof customary international law,345 it is doubtful that a right todemocracy per se—as formulated in Article 21(3) of the UDHRor otherwise—has attained the status of customary interna-tional law.346

However, there may be sufficient evidence to support a princi-ple of “democratic teleology”—a right to democratization, rather

340. Thomas M. Franck, The Emerging Right to Democratic Governance, 86AM. J. INT’L L. 46 (1992).341. Professor Greg Fox, one of the more optimistic commentators on the

emerging right to democracy, acknowledges that continued disagreement overits substantive content, as well as disparate observance of the norm, have “lim-ited the emergence of a right to democracy in customary or conventional law.”Greg Fox, Democracy, Right to, International Protection, in MAX PLANCKENCYCLOPEDIA OF PUB. INT’L LAW ¶¶ 35–37, http://opil.ouplaw.com/home/EPIL(enter title as search term) (last visited Oct. 6, 2013). The late ProfessorCassese referred, in 2005, to such a norm as “[p]robably . . . currently in theprocess of coming into being.” ANTONIO CASSESE, INTERNATIONAL LAW 395 (2ded. 2005). But see Niels Petersen, Elections, Right to Participate in, Interna-tional Protection, in MAX PLANCK ENCYCLOPEDIA OF PUB. INT’L LAW ¶¶ 17–18,http://opil.ouplaw.com/home/EPIL (enter title as search term) (last visited Oct.4, 2013) (expressing skepticism as to the existence of opinio juris and sufficientsupporting state practice). See also Susan Marks, What has Become of theEmerging Right to Democratic Governance?, 22 EUR. J. INT’L L. 507, 511 (2011);Jean d’Aspremont, The Rise and Fall of Democracy Governance in Interna-tional Law: A Reply to Susan Marks, 22 EUR. J. INT’L L. 549 (2011).342. d’Aspremont, supra note 341, at 557. Professor d’Aspremont suggests

that the rise of the PRC as a world power has helped to undermine the emer-gence of the norm altogether, by enticing emerging democracies with the prom-ise of cooperation without ideological baggage. Id. at 562–63.343. Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 21(3),

U.N. Doc. A/810 at 71 (1948).344. Davis-Roberts & Carroll, supra note 319, at 421.345. Id.346. Petersen, supra note 341, ¶¶ 17–18.


than a right to democracy.347 Dr. Niels Petersen, writing in theMax Planck Encyclopedia of Public International Law, identifiesa series of General Assembly resolutions entitled “Enhancingthe Effectiveness of the Principle of Periodic and Genuine Elec-tions.”348 Resolutions prior to 1992 consisted mainly of norma-tive statements, implying the existence of a right to democ-racy.349 Subsequent resolutions focused on electoral assistanceprovided by the Secretariat.350 The latter set of resolutions referto the “continuation and consolidation of the democratizationprocess” or to efforts to “consolidate and regularize the achieve-ments of previous elections.”351 Petersen cites the teleologicalconnotations of the words “promoting” and “consolidating” assupporting the idea of a duty to develop toward democracy.352

This idea finds further support in a separate series of GeneralAssembly resolutions. Following General Assembly Resolution55/96 on Promoting and Consolidating Democracy,353 the Gen-eral Assembly passed a series of resolutions on the promotionand consolidation of new or restored democracies.354 Some of

347. Id. ¶ 22.348. Id. ¶ 20.349. See G.A. Res. 43/157, U.N. Doc. A/RES/43/157 (Dec. 8, 1988); G.A. Res.

44/146, U.N. Doc. A/RES/44/146 (Dec. 15, 1989); G.A. Res. 45/150, U.N. Doc.A/RES/45/150 (Dec. 18, 1990); and G.A. Res. 46/137, U.N. Doc. A/RES/46/137(Dec. 17, 1991). Petersen argues that none of the resolutions in question ex-pressly confers a right to vote in elections. Petersen, supra note 341, ¶ 20.350. See, e.g., G.A. Res. 47/138, U.N. Doc. A/RES/47/138 (Dec. 18, 1992); G.A.

Res. 48/131, U.N. Doc. A/RES/48/131 (Dec. 20, 1993); G.A. Res. 49/190, U.N.Doc. A/RES/49/190 (Dec. 23, 1994); G.A. Res. 50/185, U.N. Doc. A/RES/50/185(Dec. 22, 1995); G.A. Res. 52/129, U.N. Doc. A/RES/52/129 (Dec. 12, 1997); G.A.Res. 54/173, U.N. Doc. A/RES/54/173 (Dec. 17, 1999); G.A. Res. 56/159, U.N.Doc. A/RES/56/159 (Dec. 19, 2001); G.A. Res. 58/180, U.N. Doc. A/RES/58/180(Dec. 22, 2003); G.A. Res. 60/162, U.N. Doc. A/RES/60/162 (Dec. 16, 2005); G.A.Res. 62/150, U.N. Doc. A/RES/62/150 (Dec. 18, 2007); G.A. Res. 64/155, U.N.Doc. A/RES/64/155 (Dec. 18, 2009); G.A. Res. 66/163, U.N. Doc. A/RES/66/163(Dec. 19, 2011). See also Petersen, supra note 341, ¶ 20.351. Id.352. Petersen, supra note 341, ¶ 20.353. G.A. Res. 55/96, U.N. Doc. A/RES/55/96 (Dec. 4, 2000).354. See, e.g., G.A. Res. 56/96, U.N. Doc. A/RES/56/96 (Dec. 14, 2001); G.A.

Res. 58/13, U.N. Doc. A/RES/58/13 (Nov. 17, 2003); G.A. Res. 60/253, U.N. Doc.A/RES/60/253 (May 2, 2006); G.A. Res. 62/7, U.N. Doc. A/RES/62/7 (Nov. 8,2007); G.A. Res. 64/12, U.N. Doc. A/RES/64/12 (Nov. 9, 2009); and G.A. Res.66/285, U.N. Doc. A/RES/66/285 (Jul. 3, 2012).


these resolutions contain language suggesting that states areunder a duty to democratize.355

State practice may also support a duty to democratize. Pe-tersen, citing mechanisms within the OAS and the AU to sanc-tion unconstitutional removal of elected governments, suggeststhat “[i]nternational practice is . . . principally directed againstsetbacks in the democratization process.”356 The European Com-mission’s threat of proceedings against Hungary 357 and the Eu-ropean Union’s suspension of association agreement negotia-tions with Ukraine358 may provide further evidence of an inter-national norm against democratic “back-sliding.”

H. Breaches of Public International LawSections A to G of this Part considered the PRC’s obligations

under the Joint Declaration, the ICCPR, and customary inter-national law. This section argues that the PRC’s history of ob-structing democratic development in Hong Kong, as set out inPart I of this article, violates these obligations.

1. The Joint DeclarationThe question of whether the PRC’s obstruction of Hong Kong’s

democratization violates the Joint Declaration hinges on the in-terpretation of the Joint Declaration. Both the United Kingdomand the PRC adopt the rules set out in Article 31 of the VCLT ontreaty interpretation. Thus, any interpretation of the Joint Dec-laration must consider:

(1) The requirement of good faith;(2) The ordinary meaning of its provisions in context;

355. See, e.g., G.A. Res. 64/12, supra note 354 and G.A. Res. 66/285, supranote 354.356. Petersen, supra note 341, ¶ 21.357. Gergely Szakacs, Hungary Backtracks on Contested Reforms After EU

Pressure, REUTERS, Sept. 17, 2013, available at http://www.reuters.com/arti-cle/2013/09/17/us-hungary-constitution-idUSBRE98G0DV20130917. ContraKristina Jovanovski, Hungary Dodges “Democracy” Surveillance, AL-JAZEERA,Jun. 26, 2013, http://www.aljazeera.com/indepth/fea-tures/2013/06/201362612313956611.html.358. See Andrew E. Kramer, European Union Suspends Trade Talks With

Ukraine, N.Y. TIMES, Dec. 15, 2013, http://www.ny-times.com/2013/12/16/world/europe/ukraine-protests.html.


(3) Its object and purpose;(4) Subsequent agreements regarding its interpreta-tion or application;(5) Subsequent practice establishing the parties’ agree-ment regarding its interpretation; and(6) Other rules of public international law governingSino-British relations.359

As the travaux préparatoires of the Joint Declaration have notyet been made public, Article 32 of the VCLT has limited rele-vance.360

On its face, the Joint Declaration merely requires “elections”or “consultation,” before appointing the Chief Executive. TheJoint Declaration does not itself define “elections.” However, theinterpretive criteria in Article 31 of the VCLT militate againstrestrictions on the electoral process. First, any interpretation of“elections” or “consultation” that allows a merely formal processof “election” or “consultation” would denude these terms ofmeaning. An “election” in which only one man had one vote, forexample, would be consistent neither with the requirements ofgood faith, nor with the ordinary meaning of the word “election.”

An expansive interpretation is also consistent with the objectand purpose of the Joint Declaration. One of the main purposesof the Joint Declaration was to secure a “high degree of auton-omy” for Hong Kong, except in foreign affairs and defense. Anyattempt at “watering down” the involvement of the Hong Kongpublic in electing the Chief Executive would frustrate the pur-pose of securing autonomy to Hong Kong after 1997.

Further, to the extent that the United Kingdom has acquiescedto the Basic Law, Article 45 may be treated as subsequent prac-tice in the application of the Joint Declaration.361 That Articlerequires a “broadly representative nominating committee” andelections by “universal suffrage.” These terms should be giventheir ordinary meaning.

359. See supra pp. 40–41.360. See Yash Ghai, The Intersection of Chinese Law and Common Law in

the Hong Kong Special Administrative Region: Question of Technique or Poli-tics?, 37(2) H.K.L.J. 363, 387 (2007) (travaux préparatoires of Joint Declarationand Basic Law protected by Chinese secrecy laws).361. See PATTEN, supra note 66, at 32–33. Xiao Weiyun states that the obli-

gation to enact the Basic Law stems from the Joint Declaration. See XIAO, su-pra note 235, at 13.


Lastly, other applicable rules of public international law pointtoward an expansive interpretation of “elections.” The term“elections” is not defined in the Joint Declaration. However,China has succeeded to the United Kingdom’s obligations relat-ing to Hong Kong under the ICCPR; its provisions, for reasonsset out above, are also relevant to the election of the Chief Exec-utive.

Further, rules of customary international law—in particular,emerging norms regarding democratization—are also relevantto interpretation of the Joint Declaration. The following factorsin the Joint Declaration suggest that the parties intended “elec-tions” to have an ambulatory meaning:

(1) The absence of a specific definition of “elections”;(2) Under Article 3(12), the PRC has committed itselfto maintaining its basic policies for 50 years after theestablishment of the Hong Kong SAR, i.e. it is underongoing obligations with respect to Hong Kong; and(3) China described its “basic policies” in general terms,the implementation of which will necessarily be con-text-sensitive.362

In that light, current or recent rules of customary interna-tional law in favor of democratization should also shape the in-terpretation of the Joint Declaration. Read in light of the ICCPRand current rules of customary international law, the word “elec-tions” in the Joint Declaration must admit of a substantivemeaning, rather than a merely formal one. Restrictions on theelectoral process by manipulating nomination criteria wouldrender the term “elections” nugatory. They are therefore incon-sistent with the PRC’s obligations under the Joint Declaration.

This argument is not universally accepted, even by advocatesof Hong Kong’s democratization.363 But the Chinese and Hong

362. See supra p. 41.363. In his evidence before the U.K. House of Commons Foreign Affairs Com-

mittee, Lord Patten described this argument as “pretty heavy duty and prettyunfair.” Lord Patten of Barnes, Evidence Given to the House of Commons For-eign Affairs Committee, Nov. 4, 2014, http://data.parliament.uk/written-evidence/committeeevidence.svc/evidencedocument/foreign-affairs-commit-tee/the-uks-relations-with-hong-kong-30-years-after-the-joint-declara-tion/oral/15097.html. Similarly, in her evidence before that Committee, Demo-cratic Party legislator Emily Lau declined to identify a specific provision of the


Kong governments have gone much further than merely arguingover interpretation, instead seeking to contest the Joint Decla-ration’s continued validity. In response to an inquiry into theimplementation of the Joint Declaration by the U.K. House ofCommons Foreign Affairs Committee (“FAC”), Ni Jian, China’sDeputy Ambassador to the United Kingdom, claimed that theJoint Declaration lapsed with the transfer of sovereignty in1997.364 Hong Kong’s Secretary for Constitutional and MainlandAffairs, Raymond Tam, echoed these sentiments. In response toa question from a Hong Kong legislator, Tam asserted that theJoint Declaration’s provisions “have been fully implemented,and its purpose and objectives have also been fully fulfilled.”365

In response to further legislative questioning, Tam went evenfurther—arguing that China’s “basic policies” in Article 3 werea unilateral declaration by China,366 implying that they had nobinding effect.

Neither of these arguments withstands scrutiny. The notionthat the Joint Declaration lapsed in 1997 flatly contradicts the50-year entrenchment of China’s “basic policies.”367 It also ig-nores other provisions in the Joint Declaration that survived thetransfer of sovereignty in 1997, such as those regarding the Sino-British Joint Liaison Group.368 Although Tam’s argument re-garding Article 3 being a unilateral declaration is ingenious, itdoes not survive a context-sensitive reading of Article 3. Under

Joint Declaration that had been breached with respect to Chief Executive elec-toral arrangements. Emily Lau, Evidence Given to the House of Commons For-eign Affairs Committee, Dec. 18, 2014, http://data.parliament.uk/written-evidence/committeeevidence.svc/evidencedocument/foreign-affairs-commit-tee/the-uks-relations-with-hong-kong-30-years-after-the-joint-declara-tion/oral/16902.html.364. See 2 Dec. 2014, PARL. DEB., H.C. (2014) 164 (U.K.) (speech by Sir Rich-

ard Ottaway MP, Chairman of the FAC). Seealso陳佐洱：英對「一國兩制」無監督權 [Chen Zuoer: UK has No SupervisoryPowers Over “One Country, Two Systems”], WEN WEI PO (H.K.), Dec. 15, 2014,http://paper.wenweipo.com/2014/12/15/HK1412150006.htm (asserting that the“theme” of the Joint Declaration had been accomplished in 1997).365. Press Release, H.K. Gov’t, LCQ5: The Joint Declaration on the Question

of Hong Kong (Dec. 17, 2014), http://www.info.gov.hk/gia/gen-eral/201412/17/P201412170731.htm.366. 譚志源：50年不變英無權監督 [Raymond Tam: UK Has No Supervisory

Authority Over “Unchanged for 50 Years”], MINGPAO (H.K.), Dec. 18, 2014.367. Joint Declaration, supra note 61, art. 3(12) & Annex I, ch. I.368. Id., Annex II.


Article 8, the entirety of the Joint Declaration–along with all ofits Annexes–are equally binding.369 Although the invocation ofinternational law by Beijing and Hong Kong officialdom marksa welcome departure from bluster over “color revolutions” and“external forces,”370 the arguments that have emerged are nei-ther legally nor logically sound.

2. The ICCPRIf one accepts that the Joint Declaration remains in place and

that the reservation to Article 25(b) has been severed, themethod of selection of the Chief Executive in 2017 must complywith the requirements of Article 25(b). Article 25(b) must be in-terpreted in accordance with the principle of effectiveness.371

Thus, the right of universal suffrage, the right to vote, equalityof suffrage, and the right to be elected must be interpreted asconferring substantive rights on Hong Kong residents, notmerely formal rights.372

The PRC seeks to maintain control over the nomination ofChief Executives. These proposed restrictions directly impingeupon the right to be elected. That right may only be restrictedbased on objective and reasonable criteria. Subject only to thelimited exception in Article 5(1) of the ICCPR, affiliation with apolitical party or political opinion are criteria that are neitherobjective nor reasonable. As Qiao Xiaoyang candidly admitted,the filtering of candidates for Chief Executive by the criterion of“non-confrontation” with Beijing does not admit of objective def-inition.373 The use of political criteria in “filtering” candidatestherefore infringes Article 25(b).374

369. Id., art. 8.370. See, e.g., Nectar Gan & Stuart Lau, Occupy Central Was an Attempt at

Colour Revolution: PLA General, S. CHINA MORNING POST (H.K.), Mar. 3, 2015,http://www.scmp.com/news/hong-kong/article/1728027/occupy-central-was-at-tempt-colour-revolution-pla-general (referring to “external forces” who “or-chestrated a Hong Kong version of a colour revolution”).371. See supra Part II.E.1.372. See supra pp. 57–60.373. Qiao, supra note 19.374. As the Human Rights Committee has stated, “political opinion may not

be used as a ground to deprive any person of the right to stand for election.”Gen. Comment 25, supra note 311, ¶ 17.


The question of civil nomination is slightly less clear-cut. Onits face, Article 25 requires only that the nomination process notconstitute an unreasonable barrier to candidates. Neither Arti-cle 25, nor General Comment 25, offers guidance as to the me-chanics of the nomination process. This raises the question ofwhether the Hong Kong public has a “right to nominate” underArticle 25. Maria Tam and Suzanne Pepper have suggested thatit does not.375 However, for other electoral rights to be effective,voters must have a free choice of candidates.376 As ProfessorBenny Tai (戴耀廷), a founder of Occupy Central, observed, achoice between a rotten apple and a rotten orange is no choice atall.377

3. Customary International LawThe PRC has opted to implement the Joint Declaration by ap-

pointing a Chief Executive after “elections,” rather than afterconsultations. It has also declared in the Basic Law that the “ul-timate aim” is the election of the Chief Executive by universalsuffrage. Even as a matter of customary international law, thePRC is arguably under a duty not to engage in acts that wouldundermine democratic development in the SAR—and perhaps apositive duty to democratize Hong Kong. Thus, it would nolonger be open to the PRC to adopt a system of appointing theChief Executive after only conducting local consultations, not-withstanding the provisions of the Joint Declaration.

III. REMEDIES

Breaches of duty mean little without remedies. Unfortunatelyfor Hong Kong, there are few effective remedies for the PRC’sbreaches of public international law. Members of the Hong Kongpublic have no standing to enforce China’s duties under custom-ary international law; the United Kingdom or other States couldonly enforce such duties if they are obligations erga omnes. Nei-ther the ICCPR, nor the Joint Declaration, provides for dispute

375. Lau & Lee, supra note 295; Pepper, Exploring the Options, supra note200. I refer here to the right to nominate, not the right to be nominated.376. Gen. Comment 25, supra note 311, ¶ 15.377. Lau & Lee, supra note 295. On the issue of genuine choice, see also

Monty Python’s Flying Circus (BBC television broadcast Dec. 15, 1970), avail-able at https://www.youtube.com/watch?v=M_eYSuPKP3Y (the Spam sketch).


resolution mechanisms that apply to Hong Kong. Nor has thePRC accepted ICJ compulsory jurisdiction.

A. The Joint DeclarationThe Joint Declaration contains no provisions for enforcement.

It would not be open to the United Kingdom to withdraw fromthe Joint Declaration; the treaty establishes a boundary andtherefore, falls within the proviso under Article 62(2)(a) of theVCLT barring withdrawal due to a fundamental change in cir-cumstances.378 Although the PRC’s stated “basic policies” willpurportedly remain unchanged over fifty years, the PRC has ve-hemently resisted any attempts by the United Kingdom to holdthe PRC to its promises.379 An early skirmish in 1996 suggeststhat the prospects for arbitration or adjudication are bleak. Inresponse to the PRC’s unilateral decision to replace the Legcomembers elected in 1995 with a “provisional legislature” se-lected by a 400-member Selection Committee (itself chosen bythe PRC), then Foreign-Secretary Malcolm Rifkind threatenedto refer the establishment of the provisional legislature to theICJ. 380 His Chinese counterpart, Qian Qichen, brusquely re-sponded that it was “futile” to “play the ‘international card.’”381

B. The ICCPRAlthough individuals may not enforce the PRC’s obligations

with respect to Hong Kong under the ICCPR, it is open to otherparties to the ICCPR to do so. On May 17, 1976, the U.K. Gov-ernment made a declaration under Article 41 of the ICCPR thatit recognized the competence of the Human Rights Committee toreceive and consider communications submitted by other Statesparties that had also made Article 41 declarations at least

378. Lorenz Langer, Out of Joint?—Hong Kong’s International Status Fromthe Sino-British Joint Declaration to the Present, 46 ARCH. VÖLKERRECHTS 309,336 (2008).379. See, e.g., Todd Crowell & Law Siu Lan, Tale of Two Legislatures,

ASIAWEEK (Jan. 10, 1997), http://www-cgi.cnn.com/ASIANOW/asiaweek/97/0110/nat7.html; Chong & Lau, supra note7.380. HERSCHENSOHN, supra note 29, at 21.381. Crowell & Law, supra note 379.


twelve months before the date of the submitted communica-tions.382 Article 41 continues to apply to Hong Kong by virtue ofAnnex III, Chapter XIV of the Joint Declaration, and Article 39of the Basic Law.383 However, proceedings under Article 41 donot result in legally binding judgments.384

C. Customary International Law: Obligations Erga Omnes?The PRC’s obligations under customary law in respect of Hong

Kong are only enforceable by third States if they are obligationserga omnes. The ICJ defined obligations erga omnes in the sem-inal Barcelona Traction case (Second Phase), when consideringwhether Belgium had standing to sue on behalf of shareholdersof a company incorporated in Canada that had been declaredbankrupt by a Spanish court. The ICJ held that Belgium lackedstanding. However, it held (in obiter dicta) that there was a dis-tinction between obligations owed vis-a-vis other States in thefield of diplomatic protection, and obligations erga omnes—obli-gations “towards the international community as a whole” andwhich were “the concern of all States.” 385 Such obligations de-rived from the prohibition of “acts of aggression, and of genocide,as also from the principles and rules concerning the basic rightsof the human person, including protection from slavery and ra-cial discrimination.” Obligations erga omnes also arose from “in-ternational instruments of a universal or quasi-universal char-acter.”386

The ICJ held that the obligation to respect a people’s right toself-determination is an obligation erga omnes in the PalestineWall and East Timor cases.387 In the East Timor case, Portugal,the former colonial power in East Timor, brought proceedingsagainst Australia, challenging the latter’s Timor Gap Treaty

382. Status of the International Covenant on Civil and Political Rights, supranote 279.383. Joint Declaration, supra note 61, Annex I, ch. XIII; Basic Law, supra

note 62, art. 39.384. See JOSEPH & CASTAN, supra note 23, at 22–23.385. Barcelona Traction, Light, and Power Company, Ltd. (Belg. v. Spain),

1970 I.C.J. 3, ¶ 33 (Feb. 5).386. Id. ¶ 34.387. Legal Consequences of the Construction of a Wall in the Occupied Pal-

estinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶¶ 155–56 (July 9); EastTimor (Port. v. Austl.), 1995 I.C.J. 90, ¶ 29 (1995).


with Indonesia. Portugal alleged that Indonesia had no author-ity to negotiate the treaty as it had illegally invaded East Timorin 1975 and subsequently occupied it illegally. Portugal furtheralleged that the treaty violated the right of the people of EastTimor to self-determination. The ICJ declined to rule on the law-fulness of Indonesia’s conduct, but held that Portugal’s submis-sion that the right to self-determination was assertable erga om-nes was “irreproachable.”388 In the Palestine Wall case, the U.N.General Assembly sought an advisory opinion regarding the le-gal consequences of Israel’s construction of a wall through theoccupied West Bank to prevent would-be attackers from enter-ing Israel. The General Assembly made the request after theUnited States vetoed a draft Security Council resolution con-demning the wall. The ICJ held that the wall amounted to defacto annexation of the West Bank and that the wall, along withrelated measures, severely impeded the Palestinian people’sright to self-determination.389

However, the relevance of the right to self-determination toHong Kong is questionable. Although the existence of a “people”deserving of a right to self-determination has often been as-sumed without discussion, there is still no generally agreed-upon definition of the term “people.”390 As Professor Cassese ob-served, the population of Hong Kong has remained largely Chi-nese in ethnic composition.391 On the other hand, University ofHong Kong survey data has shown that, with few exceptions,more respondents have identified as “Hongkongers” or“Hongkongers in China” than as “Chinese” or “Chinese in HongKong” since August 1997.392 Although earlier data is not availa-ble, proponents of a distinct Hong Kong identity have grownmore assertive after 1997.393 Nonetheless, the factual basis for

388. East Timor, supra note 387, ¶¶ 28–29.389. Palestine Wall Advisory Opinion, supra note 387, ¶¶ 121–22.390. Daniel Thürer & Thomas Burri, Self-Determination, in MAX PLANCK

ENCYCLOPEDIA OF PUB. INT’L LAW ¶18, http://opil.ouplaw.com/home/EPIL (entertitle as search term) (last visited Nov. 4, 2013).391. CASSESE, SELF-DETERMINATION, supra note 338, at 79–80.392. Ethnic Identity Poll, HKU POP SITE, http://hkupop.hku.hk/eng-

lish/popexpress/ethnic/eidentity/poll/datatables.html (last visited Nov. 8,2013).393. Veg, supra note 83.


referring to Hong Kong’s population as a distinct “people” re-mains uncertain.

The right to democratization is on shakier ground still. TheBarcelona Traction case suggests that obligations deriving frombasic human rights may be obligations erga omnes, yet it offersno guidance as to how to identify specific rights that give rise toobligations erga omnes. No consensus has emerged in academicliterature. Although Professor Christian Tams identifies a “coreof obligations erga omnes” deriving from peremptory norms ofinternational law, he concedes that identifying obligations ergaomnes outside of jus cogens is “considerably more difficult.”394

Similarly, Dr Maurizio Ragazzi identified five common elementsof existing obligations erga omnes, but added that they were notrigid prescriptive criteria.395 It is therefore unclear whether theright to democratization—if it exists at all—gives rise to an ergaomnes obligation to respect that right.

D. Means of EnforcementThree main difficulties arise with respect to enforcement: the

absence of any individual right of petition, the PRC’s refusal toaccept ICJ jurisdiction, and the issue of how obligations erga om-nes should be enforced.

1. Absence of Individual Right of PetitionTraditionally, public international law only recognized States

as actors; individuals enjoyed no rights under international lawand were not subject to duties under it.396 To bring claims beforeinternational judicial bodies, individuals had to persuade thegovernment of their home State to bring a claim in the exerciseof diplomatic protection.397 Although individual access to judicialproceedings is now available in specific fields, such as interna-tional human rights and international commercial arbitration,individual access is a creature of international treaties and is

394. CHRISTIAN J. TAMS, ENFORCING OBLIGATIONS ERGA OMNES ININTERNATIONAL LAW 156–57 (2005).395. THE REALITY OF INTERNATIONAL LAW: ESSAYS IN HONOUR OF IAN

BROWNLIE 474–76 (Guy S. Goodwin-Gill & Stefan Talmon eds., 1999).396. Simone Gorski, Individuals in International Law, in MAX PLANCK

ENCYCLOPEDIA OF PUB. INT’L LAW ¶ 1, http://opil.ouplaw.com/home/EPIL (entertitle as search term) (last visited Nov. 4, 2013).397. Id. ¶ 19.


not universal.398 None of the treaty-created exceptions to thecustomary rule apply to Hong Kong. The PRC is not a party tothe First Optional Protocol to the ICCPR, which provides for in-dividual complaints to the Human Rights Committee. 399 Itwould therefore fall to the United Kingdom to enforce the PRC’sduties under the Joint Declaration. Alternatively, the UnitedKingdom—or a third State—could enforce the PRC’s obligationsunder the ICCPR, or its obligations erga omnes under customaryinternational law.

2. The PRC’s Refusal to Accept ICJ JurisdictionThe PRC has not accepted the compulsory jurisdiction of the

ICJ. It has also entered a reservation to Article 66 of the VCLT,providing for references of treaty disputes to the ICJ, arbitra-tion, or conciliation. Nor is China likely to accept voluntary ICJjurisdiction in any dispute with the United Kingdom regardingimplementation of the Joint Declaration or of the ICCPR. ThePRC has jealously guarded control over Hong Kong, viewing itas an internal matter;400 any request by the United Kingdom forarbitration or litigation would likely be viewed as impinging onthe PRC’s sovereignty. The PRC has long rejected forms of dis-pute resolution involving a neutral third party in matters involv-ing its sovereignty, most recently with respect to the Philippines’request for arbitration of the East Philippine Sea / South ChinaSea dispute.401 It will likely adopt a similar approach with re-spect to Hong Kong, as it did in 1996 in the provisional legisla-ture dispute.402

398. Id. ¶¶ 25–26.399. Status of the Optional Protocol to the International Covenant on Civil

and Political Rights, U.N. TREATY COLLECTION, http://trea-ties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-5&chapter=4&lang=en(last visited Dec. 30, 2013).400. Chong & Lau, supra note 7.401. Embassy of China in Phil., Chinese Spokesperson Hong Lei’s Remarks

on China Returned the Philippines’ Notification on the Submission of SouthChina Sea Issue to International Arbitration (Feb. 19, 2013) http://ph.china-embassy.org/eng/xwfb/t1014903.htm.402. See supra Part III.A.


3. Difficulty in Enforcing Obligations Erga OmnesThe Barcelona Traction case suggests that obligations deriving

from basic human rights may be obligations erga omnes, yet italso states that human rights instruments do not confer onStates the capacity to protect victims of human rights infringe-ment regardless of nationality.403 In the Palestine Wall case theICJ held that, as far as self-determination was concerned, allStates were under several primary obligations. First, Statescould not recognize the illegal situation resulting from the Is-raeli wall. Second, States could not render aid or assistance inmaintaining that situation. Third, States were bound to ensure(within the limits of the U.N. Charter and international law)that any impediment to the Palestinian people’s right to self-de-termination is brought to an end.404

Thus, although it would likely not be open to a third State tochallenge the PRC’s conduct in respect of Hong Kong before theICJ, it may be open to such a State to encourage the PRC to com-ply with its obligations erga omnes in respect of Hong Kong byother means.405

4. Potential SolutionsThese difficulties are not insurmountable. Despite Chinese in-

transigence, it may nonetheless be possible to exert pressure onChina to comply with its international law obligations in respectof Hong Kong through unilateral conduct by the United King-dom or through attempts to refer the underlying legal issues tothe ICJ. Enforcement by third States may also be possible, inso-far as the PRC has breached obligations which are erga omnesin nature.

First, the United Kingdom could, of its own motion, publiclymonitor the PRC’s compliance with the Joint Declaration,406 and

403. Barcelona Traction, Light, and Power Company, Ltd. (Belg. v. Spain),1970 I.C.J. 3, ¶ 91 (Feb. 5).404. Legal Consequences of the Construction of a Wall in the Occupied Pal-

estinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶ 159 (Jul. 9).405. See infra Part III.D.4.406. Lord Patten of Barnes has publicly argued that the United Kingdom is

“honour bound to speak up for Hong Kong.” Chris Patten, Britain is HonourBound to Speak Up For Hong Kong, FINANCIAL TIMES, Sept. 2, 2014,http://www.ft.com/intl/cms/s/0/6458d53c-328c-11e4-93c6-00144feabdc0.html#axzz3IKVOqmcC.


engage in retorsion or countermeasures in response to Chinesebreach.407 The FCO has prepared six-monthly reports to Parlia-ment on the implementation of the Joint Declaration since July1997; continued six-monthly reports by the FCO, as well as pub-lic statements similar to Hugo Swire’s statement on September14, 2013, could help draw attention to the PRC’s continued de-linquency over Hong Kong’s democratic development. However,to date, the FCO has shown minimal interest in doing so. Itsmost recent report, issued in February 2015, maintained that“the best way to preserve Hong Kong’s strengths is through atransition to universal suffrage, which delivers a genuine choicefor the people of Hong Kong.”408 Regrettably, this language ismuch weaker than that in earlier reports. The FCO’s July 2013report, for instance, insisted that Hong Kong’s stability andprosperity were best guaranteed by “moving to a democratic sys-tem of universal suffrage in line with public consultations, thepromised timetable and international standards.”409 In a similarvein to the February 2015 report, the FCO’s initial response tothe 2014 Decision, issued on September 4, 2014, stated merelythat there was “no perfect model” for universal suffrage and as-serted that the details were for the Hong Kong and Central Gov-ernments and the people of Hong Kong to decide.410 Audrey Eutartly responded that it would have been preferable for the FCOto say nothing at all.411

407. On retorsion and countermeasures, see generally James R. Crawford,State Responsibility, in MAX PLANCK ENCYCLOPEDIA OF PUB. INT’L LAW,http://opil.ouplaw.com/home/EPIL (enter title as search term) (last visitedMar. 3, 2015) and Thomas Giegerich, Retorsion, in MAX PLANCK ENCYCLOPEDIAOF PUB. INT’L LAW, http://opil.ouplaw.com/home/EPIL (enter title as searchterm) (last visited Mar. 3, 2015).408. FOREIGN & COMMONWEALTH OFFICE, THE SIX-MONTHLY REPORT ON HONG

KONG: 1 JULY TO 31 DECEMBER 2014, at 2 (2015).409. Id. at 8.410. Press Release, Foreign & Commonwealth Office, Foreign Office Re-

sponds to Hong Kong Reform Plans (Sept. 4, 2014), https://www.gov.uk/gov-ernment/news/foreign-office-responds-to-hong-kong-reform-plans.411. Letter from Audrey Eu, Chairman, Civic Party, to Caroline Wilson, Con-

sul-General, British Consulate-General, H.K. (Sept. 5, 2014),http://www.post852.com/ (enter “not to speak at all” as search term).


In the absence of resolute action from the FCO, Parliament hasstepped in. In 2014 the FAC launched its own inquiry into im-plementation of the Joint Declaration.412 Despite being barredfrom entering Hong Kong,413 the FAC finished obtaining oral ev-idence in January 2015,414 and published its report on March 6,2015.415 In its report, the FAC roundly criticized the FCO for its

412. See The UK’s Relations With Hong Kong: 30 Years After Joint Declara-tion, PARLIAMENT.UK (July 22, 2014), http://www.parliament.uk/business/com-mittees/committees-a-z/commons-select/foreign-affairs-committee/news/hong-kong-tor/. The author submitted written evidence to the FAC inquiry: WrittenEvidence From Alvin Y.H. Cheung (HNG0270), Oct. 2014, http://data.parlia-ment.uk/writtenevidence/committeeevidence.svc/evidencedocument/foreign-affairs-committee/the-uks-relations-with-hong-kong-30-years-after-the-joint-declaration/written/13380.html.413. See FCO Should Summon Chinese Ambassador, Says Committee,

PARLIAMENT.UK (Dec. 10, 2014), http://www.parliament.uk/business/commit-tees/committees-a-z/commons-select/foreign-affairs-committee/news/report-hong-kong-visit-ban/. The Chinese decision to prevent the FAC from visitingHong Kong is arguably in breach of the Joint Declaration, which provides thatHong Kong may exercise its own immigration controls: Joint Declaration, su-pra note 61, Annex I, ch. XIV. Regardless of legality, the decision triggered a“diplomatic crisis.” 2 Dec. 2014, PARL. DEB., H.C. (2014) 180 (U.K.) (speech bySandra Osborne MP during an emergency debate on the issue).414. See The UK’s Relations With Hong Kong: 30 Years After The Joint Dec-

laration, supra note 412.415. Foreign Affairs Committee, The UK’s Relations With Hong Kong: 30

Years After the Joint Declaration, 2014–15, H.C. 649 (U.K.) [hereinafter FACReport].


“misleading” and “evasive” language in defending the 2014 De-cision,416 as well as the FCO’s weak response to the Chinese re-fusal to allow the FAC to visit Hong Kong.417 The FAC also ex-pressed concern that the FCO’s “lack of clarity” in commentingon Hong Kong’s constitutional development led to the perceptionthat the FCO was primarily concerned with maintaining traderelations with China.418 Regrettably, it seems unlikely that thereport will result in more robust British attitudes.419

Alternatively, the United Kingdom may threaten—or seek tocommence—international judicial proceedings. Although thePRC’s lack of cooperation hinders the ability to bring such pro-ceedings, it does not preclude them entirely. For instance, de-spite Chinese non-participation, the Philippines’ arbitration pro-ceedings in respect of the East Philippine Sea / South China Seadispute may nonetheless exert moral and political pressure onChina.420 Although contested ICJ proceedings cannot take placewithout Chinese cooperation, a British offer to refer disputes

416. See FAC Report, supra note 415, ch. 5, ¶¶ 53–57, at 30–32. For instance,Hugo Swire–the author of the op-eds that attracted a hostile response fromBeijing in 2013–defended the 2014 Decision by arguing that “[a] genuine choicecan mean something different from what we would regard as a genuine choiceand from what other democracies around the world regard as a genuinechoice.” Rt. Hon. Hugo Swire MP, Minister of State, FCO, Evidence Given toFAC Inquiry, Jan. 13, 2015, http://data.parliament.uk/writtenevidence/com-mitteeevidence.svc/evidencedocument/foreign-affairs-committee/the-uks-rela-tions-with-hong-kong-30-years-after-the-joint-declaration/oral/17498.html(answer to Q362). See also Stephen Lillie, Director, Asia-Pacific, FCO, Evi-dence Given to FAC Inquiry, Jan. 13, 2015, http://data.parliament.uk/written-evidence/committeeevidence.svc/evidencedocument/foreign-affairs-commit-tee/the-uks-relations-with-hong-kong-30-years-after-the-joint-declara-tion/oral/17498.html (answer to Q371). The FCO had in previous years beenrather more robust. See Keith Bradsher, China Bars Steps by Hong Kong To-ward More Democratic Voting, N.Y. TIMES, Apr. 27, 2004 (Bill Rammell, thenFCO minister for China and Hong Kong, alleged that the 2004 Decision wasinconsistent with a “high degree of autonomy” for Hong Kong).417. See FAC Report, supra note 415, ch. 1, ¶¶ 4–7, at 10–11.418. Id. at 7, ¶¶ 90–92, at 47–48.419. The FCO rejected many of the recommendations in the FAC Report. See

Foreign & Commonwealth Office, Government Response to the House of Com-mons Foreign Affairs Committee Report: The UK’s Relations With Hong Kong:30 Years After the Joint Declaration, 2015, Cm. 9038.420. Greg Torode, Philippines South China Sea Legal Case Against China

Gathers Pace, REUTERS, Sept. 27, 2013, available at http://www.reuters.com/ar-ticle/2013/09/27/us-china-philippines-idUSBRE98Q0BX20130927.


over Hong Kong’s democratization to the ICJ—perhaps in con-junction with an effort to procure a U.N. General Assembly re-quest for an Advisory Opinion, as occurred with the PalestineWall case—may be capable of exerting similar pressure onChina.

Conduct by third States provides a further, if less plausible,possibility for enforcement. Hong Kong’s limited internationalcapacity is a function of its constitutional order under the BasicLaw.421 It may therefore be open to third States to enforce thePRC’s obligations erga omnes with respect to Hong Kong (insofaras such obligations exist) by ceasing to recognize Hong Kong ashaving any separate international capacity at all. Hong Kongcurrently enjoys its own bilateral economic and cultural tieswith the United States and the European Union;422 Hong KongSAR passport holders enjoy visa-free access to a significantlylarger number of countries than holders of ordinary PRC pass-ports.423 Any suspension or cessation in third States’ recognitionof Hong Kong’s limited international personality—as contem-plated in the US—Hong Kong Policy Act424—may constitute avalid countermeasure under international law in the event of se-vere Chinese inroads into Hong Kong’s autonomy under theJoint Declaration and the Basic Law.425

Ultimately, however, the efficacy of such measures is question-able. As Langer observed in 2008, the United Kingdom was notin a position to impose its own views on the Joint Declaration on

421. Langer, supra note 378, at 333.422. Id. at 339–41.423. Visa-Free Access for HKSAR Passports, GOVHK,

http://www.gov.hk/en/residents/immigration/traveldoc/hksarpassport/visaf-reeaccess.htm (last visited Nov. 7, 2013); Mark Johanson, The Best Passportsto Have for Unrestricted Travel Around the World, INT’L BUS. TIMES (Oct. 11,2013), http://www.ibtimes.com/best-passports-have-unrestricted-travel-around-world-1422038.424. United States-Hong Kong Policy Act, 22 U.S.C. §§ 5701–5732 (2010).425. A bipartisan group of Representatives has suggested updating the US–

Hong Kong Policy Act and reinstating the requirement under that Act that theState Department prepare annual reports into conditions in Hong Kong. SeeHong Kong Human Rights and Democracy Act, H.R. 1159, 114th Cong. (2015).See also Press Release, Representative Chris Smith (R-NJ), Bipartisan Groupof Legislators Announces Bill to Ensure that U.S. Policy Supports Hong Kong’sFreedom and Democracy (Feb. 27, 2015),http://chrissmith.house.gov/news/documentsingle.aspx?DocumentID=397953.


China.426 China’s subsequent growth in economic stature canonly have weakened the United Kingdom’s position further, asreflected in the FCO’s insipid response to the 2014 Decision andto Chinese obstruction of the FAC inquiry. 427 Perhaps mostalarmingly, PRC leadership under Xi Jinping has shown in-creasing hostility toward universal values and constitutionalgovernment.428 The PRC may be in grave dereliction of its inter-national law duties with respect to Hong Kong, but it is unlikelyto respond to international remonstration for the foreseeable fu-ture.

CONCLUSION: THEY’LL MAKE A FOOL OF YOU

Hong Kong’s current predicament flows, in large part, fromChina’s consistent refusal to allow Hong Kong’s own populationto have any meaningful participation in deciding its own fu-ture.429 The removal of Hong Kong from the list of Non-Self-Gov-erning Territories took place at the PRC’s behest, with no con-sultation of the Hong Kong public. Sir Edward Youde’s presenceas a representative of the Hong Kong people (albeit an unelectedone) at the Sino-British negotiations leading to the Joint Decla-ration was roundly rejected by the PRC Foreign Ministry. HongKong civil society had minimal input in the drafting of the BasicLaw; pro-democracy voices in the Drafting Committee were ex-pelled or ignored after the Tiananmen Square Massacre of 1989.After the establishment of the Hong Kong SAR in 1997, the PRChas consistently moved to seize control of the political reformprocess and throttle democratic reforms.430 Faced with a cri decoeur from pro-democracy advocates in the form of Occupy Cen-tral, Beijing’s representatives in Hong Kong threatened to de-clare a state of emergency. Although the Umbrella Movement

426. Langer, supra note 378, at 343.427. Supra, pp. 180–183.428. See Document 9, supra note 37.429. Contra TOK, supra note 101, at 125–28.430. Declassified British Government papers show that, as early as 1984,

then-Prime Minister Margaret Thatcher predicted Beijing would interfere inHong Kong’s affairs after 1997, as “[t]he Chinese had no concept of a free soci-ety.” 憂回歸後中央干預鍾士元倡「築壩」 [Fearing Central Government Inter-ference After Handover, Sir David Akers-Jones Suggested “Dam-Building”],MINGPAO (H.K.), Jan. 4, 2014.


did not end with the large-scale bloodshed some feared, there aresigns of an ongoing campaign of governmental recriminations.431

The PRC’s lengthy history of obstructing democratization inHong Kong violates its commitments under the Joint Declara-tion, the ICCPR, and customary international law. The PRC’spromulgation of the Basic Law shows that it has chosen to allowthe Chief Executive to be chosen by elections rather than by con-sultations; in such circumstances, a purposive interpretation ofthe Joint Declaration militates against democratic “back-slid-ing.” Established rules of treaty interpretation and emergentrules of customary international law both suggest that Article25(b) of the ICCPR applies to Hong Kong, notwithstanding theUnited Kingdom’s initial reservations; any attempt by Beijing todictate political criteria for Chief Executive candidacy is there-fore a breach of Article 25(b). The emergent principle of “demo-cratic teleology” in customary international law further suggeststhat the PRC may not renege on its promise of democracy inHong Kong.

Nonetheless, the prospect of enforcing China’s internationallaw obligations in respect of Hong Kong is slim. In the absenceof any individual right to petition or of ICJ compulsory jurisdic-tion, available options for enforcement are limited. Other op-tions for enforcement such as unilateral monitoring by theUnited Kingdom, the threat of an advisory opinion, or third-State conduct exist. However, Chinese obstinacy—even towardthe United Kingdom, its counterparty in the Joint Declaration—casts doubt on the effectiveness of such measures.

Ultimately, the enforcement of China’s international law obli-gations with respect to Hong Kong’s democratization may de-pend on non-State actors. China has long emphasized that it val-ues Hong Kong’s economic stability and prosperity; 432 demo-cratic reforms are therefore likely to be justifiable to Beijing onlyinsofar as they fulfill these objectives. The U.S.-Hong Kong Pol-icy Act—with its implicit threat that the United States will cease

431. See, e.g., S.C. Yeung, Graffiti Girl—Police Killing a Chick to Scare theMonkeys, EJINSIGHT (H.K.), Jan. 2, 2015, http://www.ejinsight.com/20150102-graffiti-girl-police-killing-a-chick-to-scare-monkeys/ (translation of an op-ed inthe Hong Kong Economic Journal).432. See, e.g., Hu Reaffirms Support to Hong Kong’s Stability, Prosperity,

XINHUA, Nov. 11, 2013, http://news.xinhuanet.com/english2010/china/2011-11/12/c_131242195.htm.


to recognize Hong Kong as having any distinct international le-gal personality—is an especially potent economic incentive.Nonetheless, private actors, with none of the political baggagethat governmental intervention carries, can bring greater pres-sure to bear. American Bar Association President James Silke-nat warned that failed political reforms might drive interna-tional financial and legal institutions to Shanghai and Singa-pore.433 Ultimately, a combination of foreign investment andHong Kong civil society may be the most effective means to pre-vent China from backtracking further on its commitments toHong Kong. However, in light of increasing PRC invectiveagainst the “value bombs” of constitutionalism and humanrights,434 and continued hostility toward democracy by pro-Bei-jing politicians in Hong Kong,435 the prospects for genuine elec-tions in Hong Kong remain grim.

China’s disregard of the Joint Declaration also holds broaderlessons, at home and abroad. Hong Kongers should be alarmedby Beijing’s overt abandonment of the Joint Declaration. Absentpolitical willingness in the Hong Kong and Beijing Governmentsto protect Hong Kong’s autonomy and allow meaningful democ-ratization, international law may become one of the few effectiveremaining means of exerting pressure. Beijing’s disregard forthe Joint Declaration suggests that Hong Kong residents, al-ready wary of growing Mainland encroachment into their city’s

433. Tanna Chong, Foreign Firms may Flee Hong Kong if Reforms go WrongWay: Top US Lawyer, S. CHINA MORNING POST (H.K.), Nov. 5, 2013,http://www.scmp.com/news/hong-kong/article/1347760/foreign-firms-may-flee-hong-kong-if-reforms-go-wrong-way-top-us.434. Party media and officials have increasingly turned to “militaristic met-

aphors” in criticizing ideas, such as constitutionalism. Value Bombs, CHINAMEDIA PROJECT, http://cmp.hku.hk/2013/10/02/34224/ (last visited Nov. 8,2013). See also Document 9, supra note 37.435. Ann Chiang Lai-wan, a member of the pro-Beijing Democratic Alliance

for the Betterment and Progress of Hong Kong (DAB), claimed that popularelections would result in “many incidents.” 蔣麗芸：普選會製造很多事端 [AnnChiang: Universal Suffrage Will Create Numerous Incidents], MINGPAOINSTANT NEWS (Jan. 5, 2014, 5:01 PM),http://news2.mingpao.com/ins/%E8%94%A3%E9%BA%97%E8%8A%B8%EF%BC%9A%E6%99%AE%E9%81%B8%E6%9C%83%E8%A3%BD%E9%80%A0%E5%BE%88%E5%A4%9A%E4%BA%8B%E7%AB%AF/web_tc/article/20140105/s00001/1388912533900.


affairs,436 should expect further incursions into their civil liber-ties, ostensibly guaranteed by the ICCPR and the Joint Declara-tion.437

China’s treatment of the Joint Declaration should also alarmits international neighbors, despite its newly conciliatory tone inforeign relations.438 ASEAN members, for instance, would beright to wonder whether China would abide by a maritime Codeof Conduct–even if one could ultimately be agreed upon.439 Forall of Beijing’s professed respect for the “international rule oflaw,”440 China’s disregard of its obligations toward Hong Kongsuggests that such rhetoric—like the emphasis on domestic “ruleof law” issues at the Fourth Plenum in 2014 441 —should beviewed with skepticism.

436. See, e.g., James Pomfret, In HK, China Likely to Use Pressure, Intimi-dation to Ward Off More Protests, REUTERS, Dec. 12, 2014, available athttp://www.reuters.com/article/2014/12/12/us-hongkong-china-campaign-idUSKBN0JQ0W720141212?irpc=932.437. Inroads into press freedoms, for instance, have increasingly received in-

ternational attention. See, e.g., PEN America, Threatened Harbor: Encroach-ments on Press Freedom in Hong Kong (2015), Int’l Fed’n of Journalists,China’s Media War: Censorship, Corruption & Control (2015). See also FACReport, supra note 415, ch. 6.438. See, e.g., Matthew Miller, China’s Xi Strikes Conciliatory Note, Broadens

Diplomatic Focus, REUTERS, Nov. 30, 2014, available at http://www.reu-ters.com/article/2014/11/30/us-china-southchinasea-idUSKCN0JE04J20141130.439. See Amanda Fernandez, ASEAN Countries Agree to Discuss Code of

Conduct in South China Sea, GMA NEWS (Manila), Nov. 13, 2014,http://www.gmanetwork.com/news/story/387868/news/nation/asean-countries-agree-to-discuss-code-of-conduct-in-south-china-sea.440. Full Text of Chinese FM’s Signed Article on Int’l Rule of Law, XINHUA,

Oct. 24, 2014, http://news.xinhuanet.com/english/china/2014-10/24/c_133740723_2.htm.441. See, e.g., Carl Minzner, After the Fourth Plenum: What Direction for Law

in China?, CHINA BRIEF (Nov. 20, 2014, 1:47 PM), http://www.jame-stown.org/programs/chinabrief/single/?tx_ttnews%5Btt_news%5D=43105.

Documents

Road to Nowhere: Hong Kong's Democratization and China's